Antitrust Antifederalism

Abstract

U.S. antitrust law has been profoundly influenced by a historical aversion to direct federal superintendence of corporations. This ideological impulse began with Antifederalist opposition to Madison's proposal to grant Congress a general incorporation power and carried over to the Progressive Era where it defeated a proposed corporate regulatory model of antitrust. The antitrust antifederalist impulse thus enabled the rise of the competing crime-tort model, in which antitrust law creates a freestanding norm of industrial competition rather than a regulatory apparatus for policing the capital-concentrating effects of incorporation statutes. As it has interacted with the general features of the U.S. civil litigation apparatus, this crime-tort conceptualization has produced a variety of pathologies including an excessive focus on locating a "bad act" rather than specifying appropriate corporate structure; delegation of adjudicatory decision-making to generalist judges and juries rather than industrial policy specialists; the predominance of private enforcement over public enforcement; extension of antitrust law to non-corporate subjects, particularly the working class; and interference with federal competition policy by parochially interested state regulators. The one major exception to antitrust antifederalism's continuing dominance - the pre-merger notification system adopted in 1976 - reveals the advantages of the corporate regulatory model and suggests some steps that could be taken to rationalize the institutional structure of antitrust law.

Keywords: Antitrust, federalism, corporate regulation