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Schwinn, Steven D.

Does the Nuclear Regulatory Commission Have Authority to License Private Entities to Temporarily Store Spent Nuclear Fuel Away from the Nuclear-Reactor Site That Generated the Spent Fuel, and Can an Entity Challenge the Agency\u27s Decision-Making Process?

UIC Law Review 
Volume 58 Issue 3 Article 1 
2025 
Masthead 
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Recommended Citation 
Masthead, 58 UIC L. REV. (2025) 
https://repository.law.uic.edu/lawreview/vol58/iss3/1 
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UIC LAW REVIEW 
VOLUME 58 SPRING 2025 ISSUE 3 
 
FAYE VASILOPOULOS 
Editor-in-Chief 
EDITORIAL BOARD 
2024-2025 
 
DEREK RHEA 
Managing Editor 
 
FATIMA SIDDIQUA 
Executive Lead 
Articles Editor 
 
JACOB BARON 
Lead Articles Editor 
 
ROXY FREEL 
Lead Articles Editor 
 
SKYLAR NAFZIGER 
Lead Articles Editor 
 
RICHARD LEE 
Lead Articles Editor 
 
JACOB HULBERT 
    Executive Production Editor 
 
DAVID GIRGIS 
Administrative Editor 
BETHANY NELSON 
Candidacy Editor 
 
JORDAN ROBINSON 
Executive Student 
Publications Editor 
 
TAYLOR CHANTRY 
Student Publications Editor 
 
ERIN OWEN 
Student Publications Editor 
 
ANITA SALIU 
Student Publications Editor 
 
AMANDA MEDENDORP 
Student Publications Editor 
 
HEIDI HOPSON 
Production Editor 
 
STAFF EDITORS 
 
EYRAM ANAGLATE ISABEL BEEBE IMANI JOHNSON  
 
VICTORIA MOONCOTCH VINCENT OLSON  ANTHONY RAY 
 
JACOB ROTOLO  SEBASTIAN ROZPADEK 
 
 
  
 
STAFF
SOPHIA	ANASTASIA 
AMI	BERANEK	
HANS	BROWNSTEIN 
SAMUEL	CROAK 
ALEXA	ESSER 
ALEXANDRA	HERMAN 
NICASIA	LACORTE 
HAMZA	MEMON 
CHRISTINE	PILLADO 
ELLIOT	ROSE 
ANGELA	VIVACQUA 
ANNIE	WISE 
KYLE	ANDERSON 
KIRSTEN	BERKEY 
CLARE	BRUNN 
SAMUEL	DAUNER 
CHANG	GAO 
DANIEL	HRYNKO 
ANNA	LANTZ 
ALEX	NASCA 
MARLEE	REISCHL 
JORDAN	SALZMAN 
ERIN	WALLANDER 
JACK	WOEHLER 
OMAR	ARAFEH 
MAHA	BOKHARY 
KHALA	CARTER 
STEFAN	DAVITKOV 
IVAN	GARCIA 
CAMERON	IPPOLITO 
BRENDAN	MCDONOUGH 
NICHOLAS	NASTRUZ 
RYAN	RICHTER 
MAXWELL	SEEWALD 
MICHAEL	WARREN 
 
ROBERT	ARANDA	 
JASMINE	BOOTHE 
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MARILYN	WEBB	
	
FACULTY ADVISORS 
 
DONALD L. BESCHLE MARK E. WOJCIK 
ISSN	2836-7006	


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Cross, Jeffery M.

UIC  
REVIEW OF INTELLECTUAL PROPERTY LAW 
THE FTC’S BAN ON NONCOMPETE AGREEMENTS: SETTING SAIL ON 
A SEA OF DOUBT  
JEFFERY M. CROSS 
ABSTRACT 
In this essay, Professor Jeffery Cross covers the impact of the recently published 
Federal Trade Commission rule banning employer/employee noncompetes on long-
recognized benefits to competition of noncompete agreements. In that rule, the FTC 
concluded that noncompete agreements were an unfair method of competition under 
Section 5 of the FTC Act. This essay considers the FTC’s rule in the historical context 
of Judge William Howard Taft’s decision in United States v. Addyston Pipe & Steel Co. 
Judge Taft identified noncompete agreements entered between an employer and his or 
her prospective employee as one kind of restraint that could have procompetitive 
benefits such as encouraging employers to hire and thoroughly train employees 
without fear the employees might exploit the company’s trade secrets. The new FTC 
rule gives a nod to such benefits by finding that protecting trade secrets, confidential 
information, and other intellectual property is an insufficient justification for 
noncompete agreements, as employers have less restrictive alternatives for 
safeguarding such information. These alternatives, which include reliance on trade 
secret law and nondisclosure agreements, reasonably accomplish the same purpose as 
noncompete agreements and burden competition to a less significant degree.  
Cite as Jeffery M. Cross, The FTC’s Ban on Noncompete Agreements: Setting Sail on a Sea of 
Doubt, 24.2 UIC REV. INTELL. PROP. L. 101 (2025). 
[24.2:101 2025]  The FTC’s Ban on Noncompete Agreements: Setting Sail on a 
Sea of Doubt 
101 
THE FTC’S BAN ON NONCOMPETE AGREEMENTS: SETTING SAIL ON A SEA 
OF DOUBT 
JEFFERY M. CROSS* 
In 1898, only ten years after the passage of the Sherman Act, then Judge William 
Howard Taft issued his seminal antitrust decision, United States v. Addyston Pipe & 
Steel Co.1 Judge Taft, of course, would go on to become President of the United States 
and then Chief Justice of the Supreme Court. 
In his decision, Judge Taft examined the treatment of restraints of trade under 
the common law. He concluded that restraints should be condemned when they lack 
any justification or excuse, and where the sole object of the parties is to restrict 
competition and enhance or maintain prices. 2  However, he identified various 
restraints that were enforced at common law. One restraint involved noncompete 
agreements used in the sale of a business. In such a restraint, the seller or owner has 
built up a business with extensive goodwill. The buyer of such a business wants some 
reassurance that the seller won’t engage in the same business after the sale to the 
detriment of the buyer. This protection often takes the form of a restrictive covenant, 
committing the seller not to compete for a period in a limited area.3 
Another restraint cited by Judge Taft involved noncompete agreements entered 
between an employer and his or her prospective employee. Judge Taft noted employers 
want to hire the most capable employees and to “instruct them thoroughly,” including 
sharing the company’s trade secrets with them.4 Employers would be reluctant to do 
so unless the employee would agree not to set up a rival business “after learning the 
details and secrets of the business of their employers.” 5  This agreement is often 
referred to as a “noncompete agreement.” 
Judge Taft concluded that restraints such as the noncompete agreement were 
ancillary to a procompetitive arrangement. Increasing the employment of staff and 
assistants would expand businesses and increase output. This is clearly a 
procompetitive justification that would benefit consumers. The noncompete agreement 
facilitates that increase in employment. It would also encourage employers to hire and 
train employees. Judge Taft cited several English and American decisions upholding 
and enforcing such restraints.6 
Judge Taft also concluded that the restraint should be “reasonably necessary” to 
protect the employer. He elaborated on this later test as follows: 
 
* © 2025 Jeffery M. Cross. Adjunct Professor at the University of Illinois Chicago where he 
teaches antitrust law. He is also the author of a treatise on Section 1 of the Sherman Act 
prepared at the request of the Federal Judicial Center, the educational arm of the federal courts. 
The treatise is a basic primer on Section 1 for new federal judges or judges without a great deal 
of antitrust experience. 
1 85 F. 271 (6th Cir. 1898), aff’d 175 U.S. 211 (1899).  
2 Id. at 282-83. 
3 Id. at 281. 
4 Id. 
5 Id. 
6 Id. at 282. 
 
 
102 [24.2:101 2025]                 UIC Review of Intellectual Property Law                         
 
 
The main purpose of the contract suggests the measure of the 
protection needed and furnishes a sufficiently uniform standard by 
which the validity of such restraint may be judicially determined.  In 
such a case, if the restraint exceeds the necessity presented by the 
main purpose of the contract, it is void for two reasons: first, because 
it oppresses the covenantor [employee], without any conspiracy benefit 
to the covenantee [employer], and second, because it tends to a 
monopoly.7 
In a famous passage, Judge Taft cautioned against attempting to determine how 
much restraint of competition is in the public interest and how much is not. To Judge 
Taft, evaluating contracts that serve no purpose beyond mutual restraint—without 
regard to procompetitive benefits or anticompetitive effects—is to “set sail on a sea of 
doubt.”8 
Despite the long-recognized benefits to competition of noncompete agreements, 
the Federal Trade Commission, in a final rule published in the Federal Register in 
April 2024, banned employer/employee noncompetes across-the-board. 9  The FTC 
concluded that noncompete agreements were an unfair method of competition under 
Section 5 of the FTC Act. However, the FTC rule allowed noncompete agreements 
between sellers and buyers of businesses. 
The FTC certainly cannot have doubts about its decision based on the depth of its 
investigation. The FTC received over 26,000 comments on its proposed rule. It also 
considered several empirical research studies. That review of comments and studies 
resulted in a 162-page version of the final rule as it appeared on the FTC’s website. 
In determining the anticompetitive effect of noncompete agreements, the FTC’s 
rule appears to place a great deal of weight on the impact of noncompete agreements 
on labor markets. The FTC found that noncompete agreements tended to negatively 
affect competition in labor markets by suppressing labor mobility and earnings and 
reducing job quality. This emphasis is consistent with the FTC’s issuance of a revised 
policy statement on the meaning and scope of Section 5 of the FTC Act. In this revision, 
the FTC clearly viewed the reach of Section 5 as extended beyond the traditional 
 
7 Id. at 282. 
8 Id. at 283-84. Addyston Pipe was overshadowed by the Supreme Court’s decisions in 
Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911) (holding that restraints of 
trade under Section 1 must be unreasonable), and Bd. of Trade v. United States, 246 U.S. 231 
(1918) (setting forth a standard for the Rule of Reason). Addyston Pipe was essentially ignored 
as precedent until its revival by the Chicago School of Antitrust. See, e.g., ROBERT H. BORK, THE 
ANTITRUST PARADOX 28 (1978); Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 792 F. 2d 
210 (D.C. Cir. 1986) (Bork, J.); and Polk Bros., Inc. v. Forest City Enterprises, Inc., 776 F.2d 185 
(7th Cir. 1985) (Easterbrook, J.) Addyston Pipe’s revival, especially the “reasonably necessary” 
test, can be seen in Supreme Court decisions such as Broadcast Music, Inc. v. CBS, Inc., 441 
U.S. 1 (1979); Nat’l Soc’y of Pro. Eng’rs v. United States, 435 U.S. 679 (1978); and NCAA v. 
Alston, 594 U.S. 69 (2021). 
9 Non-Compete Clause Rule, 88 Fed. Reg. 3482, 3509 (proposed Jan. 19, 2023) (to be 
codified 16 C.F.R. pt. 910). The FTC defines a noncompete agreement as “a contractual term 
between an employer and a worker that prevents the worker from seeking and accepting 
employment with a person, or operating a business, after the conclusive of the worker’s 
employment with the employer.” 
 
[24.2:101 2025]  The FTC’s Ban on Noncompete Agreements: Setting Sail on a 
Sea of Doubt 
103 
consumer welfare standard of antitrust law to consider the impact of a restraint on 
labor markets. This position was confirmed by the FTC Chair Lina Kahn in response 
to my question during a question-and-answer session at the Loyola University Chicago 
Antitrust Colloquium in April 2023. 
Judge Taft’s concern in his famous “setting sail on a sea of doubt” passage in 
Addyston Pipe was that courts embark on uncertainty when they assume the power to 
determine how much restraint of competition serves the public interest and how much 
does not. The FTC’s across-the-board ban on noncompetes appears to undertake little 
consideration of the procompetitive benefits recognized under the common law for 
noncompetes. Under Judge Taft’s explanation of the restraint in Addyston Pipe, 
employers are incentivized to hire and train employees when they can be confident 
that doing so will not result in the employee leaving to start a competing business. 
Implicit in Judge Taft’s description of the common law’s treatment of the restraint is 
the idea that businesses grow, employment rises, and output increases. 
The FTC rule gives a nod to such benefits by finding that protecting trade secrets, 
confidential information, and other intellectual property is an insufficient justification 
for noncompete agreements, as employers have less restrictive alternatives for 
safeguarding such information. These alternatives include reliance on trade secret law 
and nondisclosure agreements. The FTC acknowledged that such alternatives may not 
be as protective as employers would like. It concluded, however, that such alternatives 
reasonably accomplish the same purpose as noncompete agreements and burden 
competition to a less significant degree. Trade secret and nondisclosure laws need to 
be strengthened to fully protect employers and incentivize them to hire and train 
employees, thereby expanding output. If such alternative laws are in fact amended, 
the FTC may very well find itself “setting sail on a sea of doubt” as it attempts to 
determine how much restraint imposed by trade secret law and nondisclosure 
agreements serves the public interest and how much does not. 


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Does the Nuclear Regulatory Commission Have Authority to License Private Entities to Temporarily Store Spent Nuclear Fuel Away from the Nuclear-Reactor Site That Generated the Spent Fuel, and Can an Entity Challenge the Agency\u27s Decision-Making Process?

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