Root and Branch Reconstruction: The Modern Transformation of U.S. Antitrust Law and Policy?

Innovation and Economic Growth and Competition Policy and Antitrust

Article Snapshot

Author(s)

William E. Kovacic

Source

Antitrust Magazine, Vol. 35, No. 3, pp. 87-101, 2021

Summary

Advocates for the transformation of antitrust policy in the United States support the revival of egalitarian goals for enforcers. Reformers have gained in influence, but several factors will limit their impact.

Policy Relevance

Antitrust reformers should study history to better understand obstacles to reform.

Main Points

  • Some commentators advocate for a “root and branch” transformation of U.S. antitrust and competition policy, a movement that has gained influence in the last five years.
     
  • Three schools of thought dominate discussions of U.S. antitrust policy:
     
    • Traditionalists are skeptical of intervention except when it promotes consumer welfare.
       
    • Expansionists support more intervention to protect innovation and workers.
       
    • Transformation advocates support intensified enforcement to promote citizen welfare and egalitarian aims, goals once embraced in early Supreme Court decisions.
       
  • Transformation advocates' agenda includes:
     
    • More use of structural remedies.
       
    • More regulation of large digital platforms.
       
    • Criticism of past Department of Justice and Federal Trade Commission decisions.
       
  • The Global Financial Crisis that began in 2007 inflicted economic misery on millions and made U.S. economic and antitrust policy ripe for rethinking.
     
  • Transformation advocates depict those who developed traditional antitrust policy, such as Robert Bork, as incompetent or unethical; transformationists created a new community of scholars, legislators, public officials, and journalists to bypass the antitrust establishment.
     
  • Some issues raised by transformation advocates will have lasting influence, including:
     
    • Attention to safeguards against capture of antitrust agencies by business interests.
       
    • Attention to evaluating past antitrust decisions and the history of antitrust policy.
       
  • Several factors will limit the influence of transformation advocates.
     
    • Advocates portray antitrust from the late 1930s to the 1970s as a Golden Age, despite the disappointment that pervades antitrust enforcers' assessments of the time.
       
    • Advocates ignore the arguments of Harvard scholars Areeda and Turner, who rejected egalitarian goals for antitrust because courts could not administer them coherently.
       
    • Advocates dismiss past antitrust agency efforts as useless; this will alienate agency staff, and undermine arguments that courts should defer to agencies’ judgment.
       
    • Advocates neglect the lessons of the collapse of the ambitious antitrust agenda of the Federal Trade Commission from 1969 to 1980.
       

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