Antitrust’s Implementation Blind Side: Challenges to Major Expansion of U.S. Competition Policy

DOI10.1177/0003603X20912884
Date01 June 2020
Published date01 June 2020
AuthorWilliam E. Kovacic,Alison Jones
Article
Antitrust’s Implementation
Blind Side: Challenges to Major
Expansion of U.S.
Competition Policy
Alison Jones* and William E. Kovacic*,**,***
Abstract
For several years, a number of commentators have expressed concern that the U.S. has a growing
market power problem. Further that dysfunction in the U.S. antitrust institutions, and their failure to
protect competition, has damaged the economy. This Article outlines the principal flaws that this
commentary attributes to U.S. antitrust policy (the “crisis in antitrust”), and some of the proposals
offered to redirect it and restore it as a central tool of economic control. The paper’s main purpose is
not, however, todebate the condition of competition in the US economyor the merits of the measures
proposed. Rather, its objective is to identify the magnitude of the implementation challenges that the
proposals for a major expansion of the U.S. antitrust program create and the policy implementation
challenges thatstand between these soaring reform aspirations and their effective realisation in practice.
The paper suggests that even though these “implementation” issues are significant, they have been too
quickly overlooked in the commentary. In our view the failure to focus on this important matter risks
creating a chasm between elevated policy commitments and the capacity of responsible public to pro-
duce expected outcomes. The paper consequently acknowledges and addresses this implementation
blindside. It analyses the important impediments that are likely, if not carefully addressed, to hamper
delivery of the current proposals and proposes ways to overcome them.
Keywords
the objectives of antitrust law, consumer welfare, citizen welfare, antitrust reform proposals,
implementation obstacles, public antitrust enforcement
I. Introduction
In June 2016, as the campaign for the U.S. presidency entered its final months, Senator Elizabeth
Warren appeared at a conference convened by a Washington, DC, think tank and offered a grim report
* King’s College London, London, United Kingdom
** George Washington University, Washington DC, USA
*** United Kingdom Competition and Markets Authority, United Kingdom
Corresponding Author:
Alison Jones, Professor of Law, King’s College London, London WC2R 2LS, United Kingdom.
Email: alison.jones@kcl.ac.uk
The Antitrust Bulletin
2020, Vol. 65(2) 227-255
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0003603X20912884
journals.sagepub.com/home/abx
on the state of markets in the United States. “[T]oday, in America,” she observed, “competition is
dying. Consolidation and concentration are on the rise in sector after sector. Concentration threatens
our markets, threatens our economy, and threatens our democracy.”
1
Senator Warren was not the first to make this critique.
2
Yet, by giving it prominence, her June 2016
speech helped move competition policy into the mainstream of popular debate.
3
Today, her themes
resonate in a large and expanding commentary that recounts a growing market power problem in the
American economy (especially in its information technology [IT] sector) and dysfunction in its
antitrust institutions.
4
By failing to protect competition, the federal antitrust enforcement agencies
and the courts are said to have damaged the economy severely. Commentators give several reasons for
the policy default: disregard of the egalitarian aims that motivated adoption of the U.S. antitrust laws in
favor of an efficiency-based goals framework;
5
judicial fidelity to outdated views of industrial orga-
nization economics;
6
and enforcement timidity rooted in the capture by potential prosecutorial targets
of the federal enforcement agencies, the Depart ment of Justice Antitrust Division (DOJ) and the
Federal Trade Commission (FTC).
7
The grievances sketched above have led to widespread debate and intensified demands for a
redirection of antitrust policy and the application of other policy instruments to increase competition.
High on the agenda is an extension of policy to provide greater control of the practices of leading
technology companies (or Tech Giants) and dominant firms in other sectors such as agribusiness and
pharmaceuticals.
Although there are dramatically different views as to how exactly change should take place (see
further Section II below), many proponents of change stress the urgent need for more vigorous and
aggressive enforcement of the antitrust laws, especially by the federal agencies. For example, there are
calls for the agencies to police future mergers more strictly, perhaps with bans or presumptions against
certain mergers (including acquisitions by large incumbent enterprises of promising start-ups); to limit
vertical integration; and to arrest exclusionary conduct by dominant companies.
Other suggested means of control include the creation of a new regulatory authority—vested in the
antitrust agencies or in a new government body—with power to promulgate rules that would establish
1. Senator Elizabeth Warren, Reigniting Competition in the American Economy Keynote Remarks at New America’s Open
Markets Program Event (Washington, DC, June 29, 2016), www.warren.senate.gov/files/documents/2016-6-29_Warren_
Antitrust_Speech.pdf.
2. For a notable earlier statement of these concerns, see generally,B
ARRY LYNN,CORNERED:THENEW MONOPOLY CAPITALISM AND
THE ECONOMICS OF DESTRUCTION (2010).
3. In the typical week, public figures give countless numbers of speeches at events organized by think tanks in Washington, D.C.
Senator Warren’s speech nonetheless immediately attracted attention. See Paul Glastris, Elizabeth Warren’s Consolidation
Speech Could Change the Election,W
ASHINGTON MONTHLY, June 30, 2016, www.washin gtonmonthly.com/2016/06/30/
elizabeth-warrens-consolidation-speech-could-change-the-election/; Brent Kendall, Elizabeth Warren Says Competition Is
‘Dying” as She Voices Fears Over Amazon, Apple,W
ALL ST.JOURNAL, June 30, 2016. See also Ron Knox, Elizabeth Warren
Is the Perfect Antitrust Crusader for 2020,S
LATE (Jan. 4, 2019), https://slate.com/news-and-politic s/2019/01/elizabeth-
warren-2020-antitrust-monopoly-crusader.html; Rhs Blakely, Tech Titans, Once the Darlings of U.S. Politics, are Recast
as Enemies,THE LONDON TIMES, September 23, 2017; Rana Foroohar, Tech ‘Superstars’ Risk a Populist Backlash,FIN.TIMES,
April 26, 2017.
4. See, generally, ARIEL EZRACHI &MAURICE STUCKE,COMPETITION OVERDOSE:HOW FREE MARKET MYTHOLOGY TRANSFORMED US
FROM CITIZEN KINGS TO MARKET SERVANTS (forthcoming 2020); RANA FOROOHAR,DONTBEEVIL—THE CASE AGAINST BIG TECH
(2019); THOMAS PHILIPPON,THE GREAT REVERSAL—HOW AMERICA GAVE UPONFREE MARKETS (2019); JONATHAN TEPPER &
DENISE HEARN,THE MYTH OF CAPITALISM—MONOPOLIES AND THE DEATH OF COMPETITION (2019); MATT STOLLER,GOLIATH:THE
100-YEAR WAR BETWEEN MONOPOLY POWER AND DEMOCRACY (2019).
5. See,e.g., Lina M. Khan, Amazon’s Antitrust Paradox, 126 YALE L. J. 710 (2017).
6. See, e.g., JONATHAN B. BAKER,THE ANTITRUST PARADIGM—RESTORING A COMPETITIVE ECONOMY (2019); Collection: Unlocking
Antitrust Enforcement, 127 YALE L.J. 1916 (2018).
7. See, e.g., PHILIPPON,supra note 4, at 153–75; TEPPER &HEARN,supra note 4, at 162–65.
228 The Antitrust Bulletin 65(2)

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT