The Omega Man or The Isolation of U.S. Antitrust Law

Abstract

There is a classic science fiction novel and film that present a metaphor for the isolation of United States antitrust law in the current global context. Richard Mathiesson’s 1954 classic science fiction novel I am Legend, and the later 1971 film released under the name of The Omega Man starring Charleton Heston, both deal with the fate of Robert Neville, a survivor of a world-wide pandemic who believes he is the last man on Earth. While I am Legend and The Omega Man are obviously works of fantasy, it nonetheless has resonance for contemporary antitrust debate and discourse. United States antitrust law and policy divergences significantly from the rest of the global antitrust community in important areas of scope, philosophy, doctrine, procedure, remedies, and institutions. Much of this divergence in world view is the product of history and path dependence that is largely unique to the United States experience. At the same time, some of the divergence is the result of ideological choices over the past forty years that improbably have remained in place in the United States, while other politics, economics, values, and policy choices have come into prominence throughout the rest of the world. Unlike The Omega Man, there is no plague and there are no monsters. But there are major fault lines in competition law and policy where the United States is the outlier and in danger of becoming The Omega Man. While there are also many issues of agreement where the United States has been a thought leader, there are a significant number of the most salient and controversial issues in modern competition law where the United States is choosing to go it alone or nearly so. There are some important caveats to this tale of antitrust exceptionalism. Some of the United States antitrust exceptionalism means more enforcement than elsewhere in the world. In most of the areas discussed in this article, it means less enforcement that is seen elsewhere, particularly than in the European Union and the numerous jurisdictions whose competition law is modeled on EU principles. Nor does going it alone, or being in the minority, mean that the United States position necessarily is in error, but it does caution against demonizing foreign approaches or relentlessly searching to transplant U.S. approaches into very different societies. This article surveys several significant areas of antitrust law and policy where United States law, procedure, institutions, and remedies differ significantly from the rest of the world. The basic thesis of the article that the growing isolation of U.S. antitrust law is more than just a transatlantic divide. Rather, much of the global community understands U.S. antitrust law and policy, but has rejected its current narrow form in favor of a broader vision of what competition law means, what legal rules are appropriate, and how they should be enforced. Even in areas such as mergers and cartels, outward convergence often masks critically different practices just beneath the surface. As a result, the debate over the future of the Chicago School is largely moot. Examining what the rest of the world competition community actually does, rather what it says, shows the debate is largely over. Whether measured by numbers of jurisdiction, percentage of world gross domestic production, population, or most other measures, the Chicago school paradigm is the outlier, the Omega Man. Part I examines single firm conduct as perhaps the most significant and largest area of substantive divergence between the United States and the rest of the world. Part II shifts to the scope of competition law where U.S. antitrust law simply does not capture a wide variety of conduct and tools that form the core of competition law in much of the world. Part III looks at the widespread use of market studies and market investigations where the United States lacks the legal infrastructure to undertake what is routine in key jurisdictions around the globe. Part IV explores how competition law outside the United States may include public interest standards that fall outside the narrow focus of U.S. antitrust law and enforcement. Part V examines similar key divergences in public enforcement, remedies, and private enforcement. Part VI questions why the United States antitrust agencies largely have shied away from the implications of big data and algorithmic competition which are attracting more significant attention abroad. Part VII changes the focus from descriptive to normative and offers preliminary explanations as to the reasons for the growing isolation of United States antitrust law and how both the United States and the rest of the world can respond to this growing divide. I conclude by returning to the question of whether the United States is indeed the Omega Man of global competition law.