Antitrust and Democracy

Abstract

This article analyzes two critical and related questions regarding the eternal quest for better understanding the purposes and tools of competition law and policy. It first looks at the role of democracy as a policy goal of competition policy. It also looks at the role of democracy in the enforcement of competition law, regardless of the normative goals of any given competition law system.

Part I examines the promotion of democracy as one of the historical and contemporary values for competition law. Part II explores how to promote democracy in the enforcement of competition law, regardless of the values adopted in the formulation of that system’s competition law. Part II also examines in detail the meaning of democracy in legislative action, agency enforcement, executive branch conduct, judicial review, private rights of actions (including collective actions), and in civil society. Part III provides a taxonomy and hypothetical example for democracy in antitrust, outlining how the roles of the different actors combine to form a virtuous feedback loop. In this feedback loop, explicit values are debated and enacted by the democratic branches of government and society. These democratically formulated values are then implemented by the more technocratic branches of government. All the while, each of the parts of the system provide feedback to the democratic branches to allow continued debate and revisions over time. Part IV concludes.

Keywords: antitrust, competition, antitrust law, competition law, democracy, administrative law, private rights of action, class actions, collective actions, state attorneys general, global administrative law, judicial deference, civil society, democracy deficit

JEL Classification: D4, D40, D42, K10, K21, K23, K41, K42, L4, L40, L41, L42, L43, L44