The Case for Rebalancing Antitrust and Regulation

Competition Policy and Antitrust

Article Snapshot


Howard Shelanski


Michigan Law Review, Vol. 109, No. 5, pp. 683-732, 2011


The author argues that the Supreme Court has reduced antitrust law’s role in regulated industries in a detrimental way.

Policy Relevance

The Supreme Court, overly focused on false positives in enforcement, has reduced the role of antitrust law as it interacts with regulated industries. This preclusion potentially forces regulators to choose between overregulation and under-regulation because antitrust is no longer available to fill the gaps.

Main Points

  • Antitrust regulation prior to 2004 allowed public enforcement agencies or private parties to base claims on conduct that was subject to regulation and if there were any limitations on those claims they were narrow.
  • Verizon v. Trinko altered antitrust regulation. Trinko established a presumption against applying antitrust law when the antitrust claims are made against a regulated firm. However, the extent of regulation necessary to incur this response was left unclear.
  • Credit Suisse v. Billing came after Trinko and precluded antitrust claims based on legitimate antitrust principles when the underlying conduct is so similar to regulated conduct that a judge may confuse the two and a conflicting statutory rule may result.
  • Trinko and Credit Suisse show that the Supreme Court is concerned that antitrust is costly and it is likely not to have much additional benefit when regulation is also present.
  • This belief by the Supreme Court disregards countervailing reasoning. For instance, antitrust law can fill gaps where regulation is either weak or unsuccessful.
  • A more accurate assessment of the costs of antitrust and regulation is necessary because regulation and antitrust costs vary from industry to industry and are also affected by technological and economic changes.
  • The Supreme Court might be limiting competition policy to either under-regulating or overregulating in regulated markets by precluding antitrust law from filling gaps.


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