Procedural and Institutional Norms in Antitrust Enforcement: The U.S. System

Forthcoming in: THE DESIGN OF COMPETITION LAW INSTITUTIONS: GLOBAL NORMS, LOCAL CHOICES (Eleanor M. Fox & Michael J. Trebilcock, eds.) (Oxford University Press)

NYU Law and Economics Research Paper No. 12-18

67 Pages Posted: 23 Jul 2012 Last revised: 22 Aug 2012

Harry First

New York University School of Law

Eleanor M. Fox

New York University School of Law

Daniel E. Hemli

Bracewell LLP

Date Written: July 20, 2012

Abstract

The purpose of this paper is to describe the institutions of antitrust enforcement in the United States and to test those institutions against a set of norms used to assess the operations of administrative agencies. The paper is part of a broader project studying global administrative agencies.

The paper begins with a short review of the statutory structure of the U.S. antitrust system (federal, state, and private) and a more in-depth description of the institutional structure of antitrust enforcement in the United States, including the interaction between U.S. and non-U.S. enforcement agencies. The second part of the paper examines the performance of the two federal enforcement agencies (the Justice Department Antitrust Division and the Federal Trade Commission) in two general areas, case-by-case decision-making and institutional performance. Within the case-by-case category, the paper reviews three aspects of the process — the decision to proceed, adjudication, and appeals — and two broad due process norms relevant to individual case decision-making — non-discrimination and proportionality of remedies. Within the institutional performance category, the paper reviews five broad norms — operational efficiency, expertise, transparency, accountability, and the rule of law. With regard to each of these ten areas, the paper describes and assesses the two antitrust agencies separately.

The paper concludes that the U.S. antitrust enforcement system measures up well in terms of the due process and institutional performance norms that are the focus of the study. Although major structural changes in the system appear to be both unnecessary and unlikely, the paper suggests some incremental changes to increase transparency and accountability throughout the decision-making process.

Keywords: Antitrust, enforcement, institutions, accountability, administrative law, due process, transparency, separation of functions, Antitrust Division, Federal Trade Commission, state enforcement, private enforcement, rule of law

JEL Classification: K21, K23, H11, L49

Suggested Citation

First, Harry and Fox, Eleanor M. and Hemli, Daniel E., Procedural and Institutional Norms in Antitrust Enforcement: The U.S. System (July 20, 2012). Forthcoming in: THE DESIGN OF COMPETITION LAW INSTITUTIONS: GLOBAL NORMS, LOCAL CHOICES (Eleanor M. Fox & Michael J. Trebilcock, eds.) (Oxford University Press) ; NYU Law and Economics Research Paper No. 12-18. Available at SSRN: https://ssrn.com/abstract=2115886

Harry First (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6211 (Phone)
212-995-4760 (Fax)

Eleanor M. Fox

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6171 (Phone)

Daniel E. Hemli

Bracewell LLP ( email )

1251 Avenue of the Americas 49th Floor
New York, NY 10020
United States

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