Taking Antitrust Away From the Courts: A Structural Approach to Reversing the Second Age of Monopoly Power

The Great Democracy Initiative, September 2018

Vanderbilt Law Research Paper No. 19-02

31 Pages Posted: 6 Dec 2018 Last revised: 16 Jan 2019

Date Written: September 1, 2018

Abstract

A small number of firms hold significant market power in a wide variety of sectors of the economy, leading commentators across the political spectrum to call for a reinvigoration of antitrust enforcement. But the antitrust agencies have been surprisingly timid in response to this challenge, and when they have tried to assert themselves, they have often found that hostile courts block their ability to foster competitive markets. In other areas of law, Congress delegates power to agencies, agencies make regulations setting standards, and courts provide deferential review after the fact. Antitrust doesn’t work this way. Courts – made up of non-expert, unaccountable judges – set much of antitrust policy. This report provides a set of recommendations to take antitrust away from the courts – to restructure the antitrust laws and agencies in order to enhance the government’s ability to enforce antitrust laws more effectively and more transparently.

Keywords: antitrust, federal trade commission, sherman act, clayton act, regulation, monopoly, competition law

JEL Classification: K21, L40, L44

Suggested Citation

Sitaraman, Ganesh, Taking Antitrust Away From the Courts: A Structural Approach to Reversing the Second Age of Monopoly Power (September 1, 2018). The Great Democracy Initiative, September 2018; Vanderbilt Law Research Paper No. 19-02. Available at SSRN: https://ssrn.com/abstract=3278415

Ganesh Sitaraman (Contact Author)

Vanderbilt Law School ( email )

Nashville, TN 37240
United States

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