The Justice Department’s recently filed antitrust case against Apple and several major book publishers over e-book pricing, which comes on the heels of the Justice Department’s successful challenge to the proposed merger of AT&T and T-Mobile, has contributed to the perception that the Obama Administration is reinvigorating antitrust enforcement from its recent stupor. As a candidate for President, then-Senator Obama criticized the Bush Administration as having the “weakest record of antitrust enforcement of any administration in the last half century” and vowed to step up enforcement. Early in the Obama Administration, Justice Department officials furthered this perception by withdrawing the Bush Administration’s report on monopolization offenses and suggesting that the fault for the financial crisis might lie at the feet of lax antitrust enforcement. Even before the AT&T and Apple cases, media reports frequently suggested that antitrust enforcement is significantly tougher under President Obama. For better or worse, the Administration’s enforcement record does not bear out this impression. With only a few exceptions, current enforcement looks much like enforcement under the Bush Administration. Antitrust enforcement in the modern era is a technical and technocratic enterprise. Although there will be tweaks at the margin from administration to administration, the core of antitrust enforcement has been practiced in a relatively nonideological and nonpartisan way over the last several decades. A cautionary note: one should be skeptical about judging the severity of antitrust enforcement by the number of cases brought alone. If the business community perceives an administration as a tough enforcer, it may propose fewer problematic mergers and engage in less anticompetitive behavior than if it perceives the administration to be weak. Antitrust enforcement vigor should not be assessed solely on statistics but also on qualitative measures.
Crane, Daniel A. "Has the Obama Justice Department Reinvigorated Antitrust Enforcement?" Stan. L. Rev. Online 65 (2012): 13-20.