Document Type

Article

Publication Date

2024

Abstract

The U.S. antitrust order is undergoing a radical challenge along three key dimensions. First, the challengers seek to denaturalize markets and replace a commitment to competition with an anti-domination norm. Second, the challengers seek to dramatically alter institutional arrangements, with Congressional legislation and agency rulemaking replacing antitrust's longstanding commitment to judicial common law incrementalism. Finally, the challengers would replace the antitrust order's preferred juridical approach-open-ended rule of reason analysiswith a return to bright-line prohibitory rules and a related demotion of economists as decision-makers. Each of these challenges entails significant consequences, many of them unintended, counter-productive, or perverse. Contrary to the broad consensus that antitrust should be apolitical, a shift to an anti-domination norm would require antitrust analysis to become more explicitly political, considering the relative deserts of different classes of stakeholders. It also threatens the antitrust agencies' objectivity and independence by requiring them to coordinate policy decisions with other bodies. The bid to curtail judicial supremacy might work if Congress passed significant new legislation, but, failing that, the challengers' strategy of suing and then refusing to settle in order to reform the law is putting judges ever more firmly in charge of antitrust norms. Similarly, an aggressive rulemaking strategy may backfire and further entrench the influence of judges. Finally, a push for rules of per se illegality may push courts to the opposite extreme-creating new rules of per se legality. Paradoxically, although antitrust reformers often cite Europe as a model of more aggressive antitrust enforcement, a return to formal per se rules and a demotion of economic analysis would move the United States in the opposite direction from trends in Europe.

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Reproduced with permission

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