The Durability, Relevance, and Future of American Antitrust Policy

Abstract

It is clear that American antitrust law, at least in some respects, has made a significant contribution to the performance of the United States' economy. So persuaded, other countries have enacted and expanded competition laws in recent decades. It is also clear that retention of antitrust law limitations on anticompetitive business conduct will continue to be a critically important feature of public economic policy. While increasing foreign competition and other changing economic conditions may oblige us to revise the antitrust bases for prohibiting such agreements as mergers and joint ventures in some markets, such changes do not eliminate the need for antitrust limitations. Moreover, the trend away from direct regulation of prices and entry in such industries as transportation increases the importance of antitrust law as a check on anticompetitive free market conduct. Judicially formulated antitrust approaches and rules have varied over time. While there are extensive disputes as to what their defects have been and are, it is generally recognized that antitrust law still has some unsatisfactory features that courts and Congress should endeavor to correct. The issues that have been raised involve not only substantive rules governing various forms of conduct, but also remedial and procedural issues such as the appropriateness of eliminating mandatory treble damages and jury trials from, and broadening the bases for summary judgment in, private antitrust suits. In Part I, I discuss the proper goals of antitrust law and the problems raised in formulating appropriate substantive rules to effect those goals. In Part II, I set forth my tentative views concerning substantive rule changes that should be made in particular areas, including horizontal and vertical resale restraints, tying arrangements, mergers, and leveraging behavior. Finally, in Part III, I consider several potentially beneficial remedial and procedural changes in the adjudication of private antitrust suits, including restricting the availability of treble damages, eliminating jury trials, and expanding the bases for summary judgment.