The Decline, Fall, and Renewal of U.S. Leadership in Antitrust Law and Policy

Abstract

US antitrust law was once the shining star of competition law; the model for the world. But, as laissez faire interpretations took deeper and deeper hold, especially with regard to single firm conduct, US antitrust law began to protect incumbents, not competition, and the star lost its glow. This essay pinpoints the increasing trivialization of Section 2 of the Sherman Act by Supreme Court precedents. It notes how, while the current paradigm is bad for the United States, it is even more harmful if applied to the rest of the world where markets often work less well and state ownership and state-granted privilege are more common. It suggests that culprits in the shrinking of effective control of abusive conduct include: formulation and application of the consumer welfare standard and of the concept of efficiency, and disregard for exploitative and other distributional concerns. It describes “the European advantage.” Finally, noting the new political economy constellation in the United States, the essay proposes a way to bring the United States into step with the world: 1) legislatively repeal the reactionary Supreme Court majority opinions and replace them in jurisprudential understanding going forward with specified dissenting opinions (e.g. Justice Breyer’s dissent in American Express) or the opinion of the Circuit Court they overrule (e.g. Trinko), returning the law to the coherent pre-Trinko narrative of power and its abuse. 2) Confirm and supplement FTC rule-making and punishment powers, leading the way for an explicit combination of rules and standards that would define and prohibit certain most egregious anticompetitive conduct that dominant firms still claim a right to do with impunity. With these reforms, the article concludes, the US can retake antitrust reins, not as hegemon but as co-equal sister jurisdiction.