University of San Francisco - School of Law
University of Colorado Law Review, Vol. 75, p. 745, 2004
Commentators regularly criticize antitrust for its wobbly intellectual foundations and ineffectual results. To address this malaise, this Article attempts a new path: a systemic deconstruction of antitrust, followed by a reconstruction of the economic and institutional foundations of a new competition law. Paradoxically, saving antitrust will require looking beyond its traditions to incorporate learnings from economic regulation.
First, the piece attempts to link antitrust's modern woes to two root causes: predominantly laissez-faire economics and limited institutions. Influential commentators have falsely defined antitrust's consumer welfare goal according to the strictures of neoclassical price theory, while ignoring antitrust's legislative history. In parallel, they have dismissed valuable modern advances in economics. Institutionally, ex post common law adjudication is ill equipped to set economic policy.
Next, the piece lays the groundwork for its proposal. Taking issue with public choice arguments, it posits that despite antitrust's current failings, government intervention is essential to protecting the integrity of markets. Also, as economic regulation has evolved it no longer makes sense to treat antitrust and regulation as separate bodies of doctrine.
Finally, the Article outlines the economics and institutions of a new competition law. Its economics must rest on empirical and behavioral reality. The goal should be to emulate a monopsonist consumer. Analytical methods must emphasize three elements: structural industry analysis, pragmatic market definitions, and isolation of bottlenecks to competition. A cross-industry Competition Office of limited powers should implement the approach. The ultimate goal is to preserve the integrity of markets; a happy by-product is the reconciliation of antitrust and regulation.
Number of Pages in PDF File: 118
Keywords: Antitrust, regulation, law and economics
JEL Classification: K21, L40, L5
Date posted: July 27, 2004 ; Last revised: March 31, 2009