The Case Against Legislative Reform of U.S. Antitrust Doctrine

Abstract

As part of their investigation of competition in digital markets, members of the Judiciary Committee of the U.S. House of Representatives solicited the views of a number of antitrust scholars on whether existing U.S. antitrust laws are adequate to address contemporary competition concerns. This submission by Thomas A. Lambert addresses (1) how the existing legal regime is calibrated to optimize antitrust’s effectiveness by minimizing the sum of error and decision costs, (2) whether digital markets require a different approach, (3) whether the United States is experiencing a “market power crisis” that warrants reform of the antitrust statutes, (4) whether antitrust is hamstrung by its exclusive focus on consumer welfare and would better serve society by precluding “abuse of dominance” or otherwise offering greater protection for competitors, and (5) the merits of ten specific reform proposals. The submission concludes that the existing antitrust statutes are optimal for addressing monopolistic conduct and potentially anticompetitive transactions. While some aspects of prevailing antitrust doctrine could be improved, the better approach is to rely on the federal courts to bring about such improvements as they adjust doctrines, in light of economic learning and market developments, through the incremental, common law process.

Keywords: antitrust, Sherman Act, Clayton Act, monopolization, mergers, exclusionary conduct, consumer welfare standard.

JEL Classification: K21, L4, L41, L44