Technocracy and Antitrust
Daniel A. Crane
University of Michigan Law School
Cardozo Legal Studies Research Paper No. 208
Texas Law Review, Vol. 86, 2008
U.S. antitrust enforcement has declined in political salience over the past few decades even while levels of public antitrust enforcement and funding for the antitrust agencies have remained generally consistent with those of earlier periods. Antitrust has become a technocratic discipline in the minds of the political elite, delegated by Presidents and Congress to specialists in the Justice Department and Federal Trade Commission.
Nonetheless, antitrust retains influential populist institutions including the civil and criminal jury, an adjudicatory system focused on binary determinations about guilt or innocence, and a Federal Trade Commission that is constrained from exercising a norm-creation role. The technocratic shift begun by the political elite could be furthered by a variety of reforms including separating cartel enforcement from other antitrust enforcement, moving from adjudication to administration, and granting the FTC norm-creation powers. Technocratic reforms are justified by three key attributes of modern antitrust - consensus on antitrust goals, resolution of the most divisive ideological questions, and the absence of a need to balance the interests of identified groups.
Number of Pages in PDF File: 69
Keywords: antitrust, FTC, Federal Trade Commission, adjudication, rulemaking, agencies
Date posted: November 17, 2007 ; Last revised: September 28, 2011