When Should Bias Be Grounds for Recusal? An Examination of Federal Ethics Rules and Recent Criticism of FTC Chair Lina Khan

by Ben Rininger, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

Under federal ethics rules, executive-branch employees are obliged to recuse themselves whenever circumstances “would cause a reasonable person with knowledge of the relevant facts to question [an employee’s] impartiality.”¹ How impartial a federal employee must be depends on their position.² For example, federal employees serving in an adjudicatory role must demonstrate a higher level of impartiality than employees serving in a prosecutorial role.³

On numerous occasions, critics of the Federal Trade Commission (“FTC”) have called on FTC Chair Lina Khan to recuse herself.⁴ This blog post explores the laws governing judicial and prosecutorial recusal, and how they apply to Khan’s recent antitrust enforcement actions.

Part II-A of this blog gives an overview of claims that Khan improperly failed to recuse herself in cases involving Big Tech companies. Part II-B discusses the irony of Meta stock being owned by the federal ethics official accusing Khan of impermissible bias relating to the Meta-Within merger, and prevalent financial conflicts of interest within the administrative state. Part II-C gives an overview of recusal requirements under federal law. Part III-A evaluates Khan’s refusal to recuse herself. Part III-B argues that ideology alone should never be a basis for recusal since ideology and legal interpretation are inseparable. Part IV expands upon this conclusion.

II. Background

A. Lina Khan’s Impartiality is Put into Question

While in law school, Lina Khan authored an article called “Amazon’s Antitrust Paradox.”⁵ The paper argued that Amazon exemplified how U.S. antitrust law was broken, and how the chief culprit for American antitrust law’s failures was the “consumer welfare standard.”⁶ In 2021, the FTC brought an antitrust case against Amazon.⁷ In response to this, Amazon called on Khan to recuse herself, alleging that Khan had a vendetta against the company.⁸

From 2011 to 2018, Khan worked for the Open Markets Institute, a political advocacy group that lobbied the FTC to take antitrust enforcement actions against Meta (the parent company of Facebook, Inc.); at one point, she was the Institute’s Legal Director.⁹ While employed at the Open Markets Institute, Khan drafted numerous articles opining that Meta engaged in conduct running afoul of U.S. antitrust laws.¹⁰ For this reason, Meta called on Khan to recuse herself in a 2021 lawsuit against the company.¹¹ Meta again called on Khan to recuse herself when the FTC attempted to block a merger between Meta and Within in July 2022.¹²

Khan’s refusal to recuse herself drew the ire of her Republican colleague and fellow FTC Commissioner, Christine S. Wilson—so much so that Wilson resigned from the FTC in 2023.¹³ In her resignation letter, Wilson characterized the FTC during Khan’s tenure as having gone “from first to worst,” citing a poll of FTC employees that found that only 44 percent of FTC employees had “a high level of respect for the FTC’s leaders” in 2022, compared to 80 percent of FTC employees in 2020.¹⁴

In a dissenting opinion regarding Khan’s recusal in the Meta/Within Merger, Wilson argued that Khan’s opinion of the merger was a foregone conclusion, and that it therefore would be improper for her to serve an adjudicatory role.¹⁵ The majority opinion denying Meta’s petition for recusal agreed with the dissent in so far as both opinions characterized an adjudicator in a merger proceeding as impermissibly biased whenever they make up their mind about a dispute prior to ever hearing a dispute.¹⁶

The majority, however, contested the dissent’s contention that Khan had already made up her mind prior to overseeing the Meta-Within Merger.¹⁷ While Khan had questioned numerous Meta mergers and Meta’s overall acquisition strategy prior to assuming her position at the FTC, Khan never commented on the possibility of Meta acquiring Within.¹⁸ The FTC majority argued that Khan’s past animosity toward similar Meta mergers did not disqualify her from judging Meta mergers as FTC chair. Citing FTC v. Cement Institute,¹⁹ the FTC majority argued that it is perfectly permissible for Khan to prosecute specific conduct that she has previously called unlawful.²⁰

B. The Pot Calling the Kettle Black

Lorielle Pankey, the federal ethics official who first called on Lina Khan to recuse herself from the Meta-Within merger, owned between $15,001 and $50,000 in Meta stock.²¹ Ironically, then, Khan was being questioned for lacking impartiality by someone who themselves had a conflict of interest.²²

Pankey’s ownership of Meta stock did not violate any conflict-of-interest statute, but numerous ethics experts argue that it violated federal regulations that direct officials to avoid any appearance of a conflict of interest.²³ If Pankey’s ownership of Meta runs afoul of federal regulations, Pankey would not be alone in her illegality.²⁴ According to the Wall Street Journal’s 2022 Capital Assets Series, roughly one out of every five senior employees at 50 federal regulatory agencies (over 2600 people) owned stock in companies that their agency oversaw.²⁵ 200 EPA officials owned oil and gas stocks between 2016 and 2021.²⁶ At the Defense Department, officials in the office of the secretary at one time collectively owned $3.4 million of stock in aerospace and defense companies.²⁷

One last example of hypocrisy in the Lina Khan recusal saga is the hypocrisy of Christine S. Wilson. In 2019, Wilson sat on a 3-2 majority to allow Bristol-Myers Squibb to acquire Celgene, despite Wilson having been compensated by Bristol-Myers Squibb for legal services.²⁸

C. Standards of Impartiality and Recusal

1. Standard of Impartiality for Prosecutors

Federal standards of impartiality for prosecutors are not as stringent as federal standards of impartiality for judicial or quasi-judicial officers.²⁹ Prosecutors are “necessarily permitted to be zealous in their enforcement of the law.”³⁰ Only judges and juries are ethically required to truly lack interest regarding whether a defendant is innocent or guilty.³¹

Prosecutors, by definition, seek to prove defendants’ guilt.³² This does not mean that prosecutors can go after any defendant they choose without limitation.³³ Prosecutors are limited in that their motivation must be the public interest and in that they cannot act contrary to the law.³⁴Prosecutors must bring cases against defendants only when they believe defendants have broken the law as prosecutors understand the law.³⁵ Of course, what “the law” is varies—depending on who is interpreting it.³⁶Moreover, prosecutors have discretion regarding which laws to enforce and to what extent.³⁷

Thus, prosecutors are given a remarkable amount of power. But prosecutors cannot seek convictions to serve their own personal or financial interests.³⁸ Defining what constitutes personal interest, however, leaves room for debate and subjectivity.³⁹ A lack of personal interest is prerequisite for both federal adjudicators and federal prosecutors alike.⁴⁰

In its petition for recusal regarding the Meta-Within merger (where Khan served in a quasi-prosecutorial, quasi-adjudicatory role reviewing the merger transaction⁴¹), Meta made the argument that Lina Khan had a “personal interest” in so far as she had an “axe to grind” against Meta.⁴² Khan once said that Meta is responsible for a “host of social ills.”⁴³ Meta argued that Khan’s dislike of Meta predates her time in law school.⁴⁴ Meta concluded that, because of her longstanding hatred of Meta, Khan could not possibly keep an open mind.⁴⁵

Countering Meta, the FTC majority denying Meta’s recusal petition posited that Khan has “[no] personal animosity against Facebook beyond her own views about antitrust laws.”⁴⁶

2. Standard of Impartiality for Adjudicators

Federal judges are generally allowed to have an “attitude of disapproval toward certain persons because of their known conduct.”⁴⁷ For a judge’s personal bias toward a defendant to be disqualifying, a judge’s animus toward a defendant must be “active and deep-rooted,” unless the judge has a financial interest or an invidious motive such as racial bias.⁴⁸

Circuit Judge Wilbur K. Miller defined the required impartiality of adjudicators at the Federal Trade Commission as follows:

Federal Trade Commissioners, like other adjudicators, are entitled to hold and express views on the laws they are charged with enforcing and applying. They ‘do not stand aloof on . . . chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do.’ We do not equate impartiality with utter indifference. A judge does not deny litigants a fair hearing by sitting in a case ‘after he had expressed an opinion as to whether certain types of conduct were prohibited by law.’ We do not expect a Trade Commissioner to be neutral on anti-monopoly policies. A fair hearing is denied, however, if the administrative judge, prior to examining the evidence and findings, has indicated his belief that named individuals or firms are violating the statute, and the ‘guilt’ or ‘innocence’ of such parties depends on certain factual findings which are in dispute. Once an adjudicator has taken a position apparently inconsistent with an ability to judge the facts fairly, subsequent protestations of open-mindedness on his part cannot restore a presumption of impartiality. Whether justice was in fact done is not the issue; an administrative hearing ‘must be attended, not only with every element of fairness but with the very appearance of complete fairness.’ We must presume that a fair hearing was denied if a disinterested observer would have reason to believe that the Commissioner had ‘in some measure adjudged the facts . . . of a particular case in advance of hearing it.’⁴⁹

In summary, the required impartiality of a federal adjudicator is distinct from the required impartiality of a federal prosecutor in so far as prosecutors are allowed (in fact, required) to prejudge disputed facts⁵⁰ and act zealously in the prosecution of the law.⁵¹ Judges, meanwhile, must not prejudge disputed facts,⁵² and must maintain true disinterest regarding whether a party prevails⁵³ (although judges may eschew indifference regarding what conduct violates the law⁵⁴).

III. Discussion

A. Evaluating Khan in Context

Proving that Lina Khan prejudged the facts of the Meta-Within merger is a difficult task, because Khan never commented on the merger prior to the FTC reviewing it.⁵⁵ The crux of Meta’s argument that Khan prejudged the facts was that Khan had a pattern of disapproving Meta acquisition activity, through her individual statements and through the statements of the Open Markets Institute.⁵⁶

But the mergers that Meta cites that Khan objected to are mergers in a completely different relevant market—the social network market.⁵⁷ The Meta-Within merger concerns horizontal integration in the VR fitness app market.⁵⁸ Meta owns the VRfitness app Beat Saber, while Within operates the VR fitness app Supernatural.⁵⁹ Nowhere in Meta’s Petition for Recusal does Meta mention comments by Khan about the VR fitness app market.⁶⁰

Evaluating whether a merger is permissible requires studying the nature of the market in which the merger occurs.⁶¹ Section 7 of the Clayton Act prohibits mergers where their effect is “substantially to lessen competition, or to tend to create a monopoly.”⁶² FTC adjudicators like Khan and Wilson may disagree about what it means for competition to be lessened “substantially,”⁶³ but for either of them to make such a determination, they need to first know what market they are talking about.⁶⁴

That is what makes Meta’s petition for recusal so puzzling; the petition posits that Khan has prejudged the Meta-Within merger, even though the FTC Complaint alleges that the merger affects an industry that Khan has never talked about before.⁶⁵

Amazon petitioning Khan for recusal makes slightly more sense, given that Khan had criticized Amazon for anticompetitive pricing structures and tying prior to joining the FTC,⁶⁶ and given that the FTC’s current lawsuit against Amazon alleges antitrust violations related to anticompetitive pricing structures and tying.⁶⁷

Yet in the FTC’s pending case against Amazon, Khan is serving a purely prosecutorial role.⁶⁸ This means that Khan is perfectly entitled to prejudge Amazon’s activities as illegal and prosecute them accordingly.⁶⁹ Khan just cannot prosecute Amazon under the motivation of a financial interest, a personal interest, or a personal prejudice.⁷⁰

B. How Should We Define “Personal Interest” and “Impartiality”?

One could make the argument that Khan does have a personal interest in seeing Amazon prosecuted. After all, shebecame famous through writing Amazon’s Antitrust Paradox.⁷¹ One could speculate that Amazon is her Moby Dick,⁷² and that her prosecution of Amazon is tied up in her own ego. Putting aside the fact that this is mere speculation, given the gigantic presence of ego in the practice of law and in the human condition, defining ego as a “personal interest” for the purposes of recusing judges and prosecutors is likely more than the legal system can bear.⁷³

Case law clearly outlines cases where prosecutors and adjudicators alike have an impermissible “axe to grind” or impermissible prejudice against a defendant.⁷⁴ For example, some courts have ruled that a prosecutor cannot be a political opponent of a defendant.⁷⁵ Courts have also ruled that an adjudicator may also be disqualified for racial bias or financial interest.⁷⁶

What these disqualifications all have in common is that they have nothing to do with the law. That is, in each of these situations outlined above, the prosecutor or the judge in question is not being motivated by a vision of the law; rather, they are being motivated by non-legal factors.

Without doubt, lawyers have wide differences of opinion about what the law is and what it should be.⁷⁷ Look at the thousands of legal opinions that have dissents, and this commonsense fact becomes quite evident.⁷⁸

Every vision of the law often creates enemies that make repeat appearances. Conservative Supreme Court justices have for decades issued opinions against abortion clinics.⁷⁹ Yet they do not recuse themselves in cases involving abortion clinics.⁸⁰ Liberal Supreme Court justices have historically not sided with landowners who argue that the EPA has wrongfully classified their property as a wetland.⁸¹ Yet liberal justices do not recuse themselves in cases involving such landowners.⁸²

In other words, different legal philosophies create different outcomes in terms of who is breaking the law. To say that one’s legal philosophy should be grounds for recusal in cases involving certain actors because certain actors tend to lose (i.e., violate the law under a given legal philosophy) is nonsensical, because every legal philosophy creates losers.

Thus, the response to Lina Khan identifying numerous actions by Meta and Amazon as illegal under our antitrust laws should not be to ask Lina Khan to recuse herself because she is “biased.” If one has a problem with Lina Khan’s grievances against Meta and Amazon, one should respond to the antitrust philosophy undergirding these grievances.⁸³

Saying that Khan has a disqualifying bias for having a vision of antitrust law that often places Facebook and Amazon on the losing side ignores a central truth about law: that law is often vague (and often deliberately so⁸⁴), lending way to different visions.⁸⁵ This does not mean that judges can act without restraint. Far from it, judges are limited (1) by the meaning of text as understood by the public, (2) by the intent of legislators, (3) by tradition, and (4) by pragmatic concerns about how law can best serve the populace and manifest the purpose for which it is created and maintained.⁸⁶

Legal commentators can mount plenty of valid criticisms of Khan on these four grounds, and plenty have done just that.⁸⁷ But to criticize Khan for merely having a bias is frankly silly. Is there anyone that can stand up and say honestly that they lack bias?

To be an “impartial jurist,” therefore, cannot mean to lack bias regarding the meaning of the law or the legality of conduct by big players, because every judge and prosecutor has a bias regarding the meaning of the law and the legality of conduct by big players. If that is the meaning of an impartial jurist, there simply is no such thing as an impartial jurist. A more attainable (albeit still hard to attain) definition of an impartial jurist would be one whose only bias in deciding cases is bias regarding the meaning of the law itself.

IV. Conclusion

Many people are quick to conclude that, because judges have ideologies that guide what they deem “the law” to be, judicial impartiality is a sham.⁸⁸ Under this thinking, judges are just politicians in robes, and their voting records confirm as much.⁸⁹ Antitrust law provides fertile ground for this type of thinking, given that antitrust law can be remarkably subjective.⁹⁰

People who make such points have a point—that law is not all about “calling balls and strikes.”⁹¹ To reject judicial impartiality as an ideal, however, throws the proverbial baby out with the bathwater. We are a country based around the idea that we are ruled by laws and not by men.⁹² To strive to be ruled by law is to strive to be ruled by an ideal; to concede to be ruled by men is to concede that, in the end, power and personal interest are our only masters.⁹³

Striving toward any ideal inevitability creates enemies. In the case of Lina Khan, those enemies are Amazon and Meta, among others. It is important to distinguish between enemies created by an ideal grounded in law, and enemies whose creation is neither grounded in ideals nor law. The former has a place in our republic; the latter gives way to a partiality that courts have long regarded as providing an adequate basis for recusal.

Cover Photo by Peggy Marco on Pixabay

Ben Rininger

Ben Rininger is a 2L Associate Member of the University of Cincinnati Law Review. Ben is from Akron, Ohio. Ben's legal areas of interest include litigation, antitrust, banking, constitutional, and environmental law. When is Ben is not doing legal work, Ben likes to hike, kayak, play board games, travel, and spend time with friends and family.

References

1
5 CFR 2635.501(a).
2
FTC v. Facebook, Inc. (Facebook I), 581 F. Supp. 3d 34, 63 (D.D.C. 2022).
3
Id.
4
The Editorial Board, Lina Khan’s Recusal Coverup, Wall St. J., (June 18, 2023), https://www.wsj.com/articles/lina-khans-recusal-coverup-ftc-meta-merger-within-ethics-1a0eb52c; Jay Greene & Rachel Lerman, Amazon Seeks Recusal of FTC Chair Khan, a Longtime Company Critic, Wash. Post (June 30, 2021), https://www.washingtonpost.com/technology/2021/06/30/amazon-khan-ftc-recusal/.
5
Lina Khan, Amazon’s Antitrust Paradox, 126 Yale L.J. 710 (2017).
6
Id. at 720 (“In his highly influential work, The Antitrust Paradox, Robert Bork asserted that the sole normative objective of antitrust should be to maximize consumer welfare, best pursued through promoting economic efficiency. Although Bork used “consumer welfare” to mean “allocative efficiency,” courts and antitrust authorities have largely measured it through effects on consumer prices. In 1979, the Supreme Court followed Bork’s work and declared that “Congress designed the Sherman Act as a ‘consumer welfare prescription’”—a statement that is widely viewed as erroneous. Still, this philosophy wound its way into policy and doctrine. The 1982 merger guidelines issued by the Reagan Administration—a radical departure from the previous guidelines, written in 1968—reflected this newfound focus. While the 1968 guidelines had established that the “primary role” of merger enforcement was “to preserve and promote market structures conducive to competition,” the 1982 guidelines said mergers “should not be permitted to create or enhance ‘market power,’” defined as the “ability of one or more firms profitably to maintain prices above competitive levels.” Today, showing antitrust injury requires showing harm to consumer welfare, generally in the form of price increases and output restrictions.”).
7
Darren Bush, What’s Behind Amazon’s Demand that FTC Chair Lina Khan Recuse Herself?, promarket (Aug. 24, 2023), https://www.promarket.org/2021/08/24/amazon-demand-ftc-lina-khan-recusal/.
8
Jessica Karl, Lina Khan’s Amazon Suit is About Customers, Not a Vendetta, Bloomberg (Sept. 26, 2023), https://www.bloomberg.com/opinion/articles/2023-09-26/ftc-s-lina-khan-is-suing-amazon-to-protect-consumers-and-retailers-ln0vptwk#xj4y7vzkg.
9
Petition for Recusal, Facebook, Inc., FTC Docket No. 9411 (July 14, 2021).
10
Id.
11
Id.
12
Chelsey Cox, FTC Chair Lina Khan Refused to Sit Out Agency’s Case Against Meta Despite Ethics Concerns, Report Says, CNBC (June 16, 2023), https://www.cnbc.com/2023/06/16/ftc-chair-lina-khan-refused-to-sit-out-meta-case.html.
13
Id.
14
Resignation Letter from FTC Commissioner Christine S. Wilson to President Joseph R. Biden, Jr. (Mar. 2, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/p180200wilsonresignationletter.pdf.
15
Dissenting Statement Of Commissioner Christine S. Wilson, FTC Docket No. 9411 (2023), https://www.ftc.gov/system/files/ftc_gov/pdf/d09411orderpetrecusalwilsondissent.pdf.
16
Id.; Order Denying Petition for Recusal, Facebook, Inc., FTC Docket No. 9411 (2023).
17
Order Denying Petition for Recusal, Facebook, Inc., FTC Docket No. 9411 (2023).
18
Id.
19
FTC v. Cement Inst., 333 U.S. 683, 701 (1948) (holding that due process is not violated when an FTC Commissioner “sit[s] in a case after he had expressed an opinion as to whether certain types of conduct were prohibited by law”).
20
Order Denying Petition for Recusal, Facebook, Inc., FTC Docket No. 9411 (2023).
21
KJ Boyle, Lina Khan Haters Took a Premature Victory Lap, The Am. Prospect (July 5, 2023), https://prospect.org/power/2023-07-05-lina-khan-haters-premature-victory-lap/.
22
Id.
23
Brody Mullins & Rebecca Ballhaus, Ethics Official Owned Meta Stock While Recommending FTC Chair Recuse Herself from Meta Case, The Wall St. J. (June 30, 2023), https://www.wsj.com/articles/ethics-official-owned-meta-stock-while-recommending-ftc-chair-recuse-herself-from-meta-case-8582a83b.
24
Rebecca Ballhaus et. al., Federal Officials Trade Stock in Companies Their Agencies Oversee, The Wall St. J. (Oct. 11, 2022), https://www.wsj.com/articles/government-officials-invest-in-companies-their-agencies-oversee-11665489653.
25
Id.
26
Id.
27
Id.
28
KJ Boyle & Andrea Beaty, Wilson’s Parting Shots Draw Attention to Her Actual Conflicts of Interest, Revolving Door Project (Mar. 12, 2023), https://www.therevolvingdoorproject.org/following-loud-and-lousy-exit-ftc-better-off-without-christine-wilson/.
29
Facebook I, 581 F. Supp. 3d 34 at 63.
30
Id.
31
Id.
32
Prosecutor, Merriam-Webster, Merriam-Webster,https://www.merriam-webster.com/dictionary/prosecutor (last visited Oct. 28, 2023) (“a government attorney who presents the state’s case against the defendant in a criminal prosecution”) (emphasis added).
33
Marshall v. Jerrico, Inc., 446 U.S. 238, 249 (1980).
34
Id.
35
Criminal Justice Standards For The Prosecution Function § 3-4.3(a) (Am. Bar Ass’n 4th ed. 2017),https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition/. (“A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice.”).
36
What is the Rule of Law, Am. Bar Ass’n,https://www.americanbar.org/advocacy/rule_of_law/what-is-the-rule-of-law/ (last visited Oct. 28, 2023) (“Aren’t laws made by men and women in their roles as legislators? Don’t men and women enforce the law as police officers or interpret the law as judges? And don’t all of us choose to follow, or not to follow, the law as we go about our daily lives? How does the rule of law exist independently from the people who make it, interpret it, and live it? The easiest answer to these questions is that the rule of law cannot ever be entirely separate from the people who make up our government and our society. The rule of law is more of an ideal that we strive to achieve, but sometimes fail to live up to.”).
37
Bruce Frederick & Don Stemen, The Anatomy of Discretion: An Analysis of Prosecutorial Decision Making—Technical Report, DOJ (Dec. 2012), https://www.ojp.gov/pdffiles1/nij/grants/240334.pdf.
38
Facebook I, 581 F. Supp. 3d 34 at 64.
39
State v. Stalbert, 212 So. 3d 619, 620 (La. App. 4th 2017) (a state appellate case contending with the definition of “personal interest,” stating that “A personal interest [of a prosecutor which provides grounds for recusal] . . . could be any factor which results in the district attorney singling out a particular case for any reason unrelated to the duties and responsibilities of a prosecutor . . . A personal interest . . . results when an incident or occurrence adversely affects the district attorney’s ability to exercise detached professional judgment.”) (Of course, the scope of a prosecutor’s duties and responsibilities and the meaning of “detached professional judgment” can be debated).
40
See Jackson v. Valdez, 852 F. App’x 129, 134 (5th Cir. 2021) (a judge asserting during confirmation that he would “set aside his personal beliefs and apply binding precedent” supports the conclusion that he is committed to applying the law accordingly); and Wright v. United States, 732 F.2d 1048, 1055 (2d Cir. 1984) (holding that prosecutors are disqualified from serving when they have a “personal animosity” toward defendants, in a case where the prosecutor’s wife was a political opponent of the defendant and other evidence indicated that the prosecutor “almost certainly harbored personal animosity against [the defendant]”).
41
Nathalie Nielson, The Petitions for the Recusal of Chair Lina Khan: A Matter of Due Process or Delaying the Process?, 6 Mkt. And Competition L. Rev. 155, 160 (2022).
42
Petition for Recusal, Facebook, Inc.,FTC Docket No. 9411 (2021).
43
Id.
44
Id.
45
Id.
46
Order Denying Petition for Recusal, Facebook, Inc., FTC Docket No. 9411 (2023).
47
United States v. Conforte, 624 F.2d 869, 881 (9th Cir. 1980).
48
Id.
49
Texaco, Inc. v. FTC, 336 F.2d 754, 764 (D.C. Cir. 1964).
50
Criminal Justice Standards For The Prosecution Function (Am. Bar Ass’n 4th ed. 2017), https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition/.
51
Facebook I, 581 F. Supp. 3d at 63.
52
Texaco, 336 F.2d at 764.
53
Facebook I, 581 F. Supp. 3d at 63.
54
Texaco, 336 F.2d at 764.
55
Order Denying Petition for Recusal, Facebook, Inc., FTC Docket No. 9411 (2023).
56
Petition for Recusal, Facebook, Inc., FTC Docket No. 9411 (2021) (citing statements by Khan that “the FTC’s decision to ‘allow[] [the Instagram acquisition] to go through’ in 2012 was an ‘institutional failure’ that demands ‘a moment of reckoning’” and statements that the FTC should reestablish WhatsApp and Instagram as competing social networks, among other statements).
57
Order Denying Petition for Recusal, Facebook, Inc., FTC Docket No. 9411 (2023).
58
Complaint at 3, FTC v. Meta Platforms, Inc., Mark Zuckerburg, and Within Unlimited, Inc., No. 3:22-cv-04325 (N.D. Cal. July 27, 2022).
59
Id.
60
Petition for Recusal, Facebook, Inc., FTC Docket No. 9411 (2021).
61
U.S. Dep’t of Just. & Fed. Trade Comm’n, Horizontal Merger Guidelines (2010).
62
15 U.S.C. § 18 (2023).
63
Tristan Bove, Republican Regulator Rips Lina Khan in ‘Noisy Exit,’ Accuses ‘Hipster Antitrust’ Boss of Breaking the Law by Having Opinions on Mark Zuckerberg, Fortune (Feb. 15, 2023), https://fortune.com/2023/02/15/ftc-christine-wilson-commissioner-republican-resigns-lina-khan-disregard-rule-of-law/.
64
U.S. Dep’t of Just. & Fed. Trade Comm’n, Horizontal Merger Guidelines (2010).
65
Petition for Recusal, Facebook, Inc., FTC Docket No. 9411 (2021).
66
Nielson, supra note 42, at 172.
67
Complaint at 100-122, FTC v. Amazon.com, Inc., No. 2:23-cv-01495 (W.D. Wash. Sept. 26, 2023).
68
Id. at 5 (stating that the FTC and numerous state attorneys general are prosecuting Amazon under Section 2 of the Sherman Act, Section 5 of the FTC Act, and analogous state statutes).
69
Criminal Justice Standards For The Prosecution Function (Am. Bar Ass’n 4th ed. 2017), https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition/.
70
Valdez, 852 F. App’x at 134.
71
Will Oremus, Lina Khan’s Amazon Lawsuit Is Nothing Like Her Famous Law Article, Wash. Post (Sept. 27, 2023), https://www.washingtonpost.com/technology/2023/09/27/lina-khan-amazon-antitrust-paradox/.
72
Herman Melville, Moby Dick (Northwestern Univ. Press 2001) (1851).
73
Donald C. Langevoort, Essay: Ego, Human Behavior, and Law, 81 Va. L. Rev. 853 (1995) (“I offer a curious and disturbing suggestion. Ego and law are in many ways antithetical. As traditionally understood, law is built on notions of objectivity and universality. Ego, on the other hand, produces a subjective disjunction between self-perception and perception of others. By distancing the self from a collective domain shared with others – the domain in which law operates – ego can weaken the law’s capacity to influence. To be sure, a combination of social, situational, and institutional constraints frequently prevents an ego from enjoying completely free reign, and moral conditioning will blunt its force in some people some of the time. Nonetheless, ego remains a potentially powerful explanation when human behavior seems insensitive to legal dictates and ethical claims. My aim here [in writing this essay] is simply to prompt, both in legal scholarship and in ordinary practical reasoning, fuller recognition of the central, if somewhat dismaying, role that ego plays in everyday life.”).
74
See Wright, 732 F.2d at 1055; and Conforte, 624 F.2d at 881.
75
Wright, 732 F.2d at 1055.
76
Conforte, 624 F.2d at 881.
77
Lon L. Fuller, The Case of the Speluncean Explorers, 62 Harv. L. Rev. 616 (1949).
78
Lee Epstein et. al., Why (And When) Judges Dissent, 3 J. Legal Analysis 101 (2011) (“We therefore predict, and we find, a higher dissent rate in the Supreme Court than in the courts of appeals. In fact, a much higher rate: as shown in Figure 1, it is 62 percent in the Supreme Court and only 2.6 percent in the courts of appeals.”); and United States Courts, About the U.S. Court of Appeals, https://www.uscourts.gov/about-federal-courts/court-role-and-structure/about-us-courts-appeals (last visited Oct. 30, 2023) (stating that federal circuit courts collectively hear an average of over 7000 cases annually).
79
See ACLU, Timeline of Important Reproductive Freedom Cases Decided by the Supreme Court, ACLU (Dec. 1, 2003), https://www.aclu.org/documents/timeline-important-reproductive-freedom-cases-decided-supreme-court; Richard W. Garnett, The Lone Ranger’s Long Game, CITY J. (June 28, 2022), https://www.city-journal.org/article/the-lone-rangers-long-game.
80
Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022).
81
Sackett v. EPA (Sackett II), 598 U.S. 651 (2023) (recounting the history of Clean Water Act wetland definition from Riverside Bayview Homes to Rapanos to Sackett I to the present).
82
Id.
83
Corbin K. Barthold, Khan’s Crusade, City J. (Oct. 20, 2023), https://www.city-journal.org/article/khans-crusade (identifying the Neo-Brandesian school of thought as Khan’s antitrust philosophy motivating numerous enforcement actions she has taken against Meta and Amazon).
84
Joseph Grundfest & Adam Pritchard, Statutes with Multiple Personality Disorders: The Value of Ambiguity in Statutory Design and Interpretation, 54 Stan. L. Rev. 627, 628 (2002).
85
Lon L. Fuller, The Case of the Speluncean Explorers, 62 Harv. L. Rev. 616 (1949).
86
Matthew Lewans, Pragmatism and Judicial Restraint, 1 Athens J. Of Law 9 (2015) (expounding on many of these themes and how they operate in American, British, and Canadian law).
87
Bryce Tobin, Repealing the Consumer Welfare Standard: FTC as Central Economic Planner?, 6 Bus. Entrepreneurship & Tax L. Rev. 218, 230 (2022) (describing Lina Khan’s antitrust philosophy, how it departs from the prevailing Consumer Welfare Standard, and how it could be used to “bring actions against companies arbitrarily and with minimal oversight.”).
88
David F. Levi, What Does Fair and Impartial Judiciary Mean and Why Is It Important?, Bolch Judicial Inst. (Nov. 5, 2019), https://judicialstudies.duke.edu/2019/11/what-does-fair-and-impartial-judiciary-mean-and-why-is-it-important/.
89
Id.
90
Fred Ashton, Why the Consumer Welfare Standard Is the Backbone of Antitrust Policy, Am. Action Forum (Oct. 26, 2022), https://www.americanactionforum.org/insight/why-the-consumer-welfare-standard-is-the-backbone-of-antitrust-policy/ (arguing that Lina Khan’s proposal to abandon the Consumer Welfare Standard promises to return the U.S. to a more subjective antitrust regime replete with uncertainty, stifled innovation, and slowed economic growth).
91
Marcia Coyle, Only ‘Balls and Strikes’? Sotomayor: Don’t Ignore How Strike Zone Is Set, Nat’l Law J. (May 21, 2021), https://www.law.com/nationallawjournal/2021/05/21/only-balls-and-strikes-sotomayor-dont-ignore-how-strike-zone-is-set/?slreturn=20230930143004 (“Figuring out where the strike zone is requires a value judgment.”).
92
Richard Samuelson, A Government of Laws, Not of Men, Claremont Rev. Of Books (2017), https://claremontreviewofbooks.com/a-government-of-laws-not-of-men/#:~:text=Adams%20famously%20called%20a%20republic,He%20was%20quoting%20James%20Harrington.
93
Id. (quoting James Harrington: “The empire of laws is concerned with right; the empire of men, with power.”).