The battle for reform of US antitrust law

Abstract

The Biden administration has sought to make a big difference in US antitrust law. At the outset, it assessed the current state of antitrust as weak and laggard, not fit for the 21st century, and out of step with the world. It seeks to change the course of the law as well as the conversation. How well is it doing? How likely is it to succeed? Redrawing the coalitions as the Reformers versus the Neoliberals, it concludes on a note of hope for the Reformers. The problem surfaced politically—with the politicians and ‘the people’—before it became a common subject of conversation in the expert antitrust community. It surfaced before Joe Biden was elected President of the USA and on both sides of the political aisle. People were concerned with the high price of goods and services and the increasing concentration of markets; they believed that markets were working for the elites and not for them, and that antitrust law was a collaborator. Antitrust became a plank of the Democratic Party in the presidential election of 2020, championed by Bernie Sanders, Elizabeth Warren, and Amy Klobuchar. Famously, President Joe Biden issued an Executive Order declaring that the US economy had a big competition deficit and that we needed a whole-of-government approach to instill competition into all segments of the economy. He appointed a team of like-minded advocates—Tim Wu to head competition policy at the White House, Lina Khan to chair the Federal Trade Commission, and Jonathan Kanter to head the Antitrust Division of the Department of Justice.