Beyond Chicago: Will Activist Antitrust Arise Again?

• DOI: 10.1177/0003603X9403900101
• Date: 01 March 1994
• Published date: 01 March 1994
• Subject Matter: Article

The Antitrust Bulletin/Spring 1994

Beyond Chicago: will activist

antitrust arise again?

BY

ROBERTH.

LANDE*

1

There is no need to document the revolution in antitrust

that

occurred in large part as a result of the rise of the Chicago school

of antitrust and the Republicans' 1980 election victory. Now that

the Democrats are back in office a natural question arises: Will

there be a counterrevolution? What are the chances

of

signifi-

cantly more aggressive antitrust in the near future?

This article will assemble a menu of relatively new ideas and

circumstances that could perhaps lead to an antitrust renaissance.

It

will not revisit the reasons for the failures of past enforcement

initiatives;' nor will it discuss relatively "neutral" advances in the

*Associate Professor, University of Baltimore School of Law.

AUTHOR'S

NOTE: I am grateful to Neil Averitt, Alan Fisher, James Giffin,

John Kirkwood, William Kovacic, and Howard Marvel for extremely use-

ful suggestions, and to Alexander Baehr and

Jack

Merritt for excellent

research assistance.

The last time the Democrats controlled the presidency their anti-

trust appointees initiated or continued such doomed initiatives as no-fault

monopolization, shared monopoly, and conglomerate merger cases. The

author was an attorney at the Federal Trade Commission from 1978 to

(i:I 1994 by Federal Legal Publications, Inc.

2 The antitrust bulletin

field that will not necessarily lead to a greater or lesser number of

cases.s Instead, this article will supply a list of possibilities that

could conceivably contribute to an antitrust resurgence.

It

will

begin by discussing some ideas and conditions that largely were

not available to previous Democratic administrations. The article

will then present many

of

the reasons behind

antitrust's

long

decline.

It

will conclude by attempting to balance these competing

tendencies to determine whether acounterrevolution is likely.

1984, and every case that he worked on there was unsuccessful. This is

almost certainly not due entirely to the author's own ineptitude, and he

hopes that the new enforcers will not repeat the Carter administration's

mistakes. For discussions of these enforcement initiatives see Robert

Pitofsky, Symposium: Anticipating Antitrust's Centennial: Comment:

Antitrust in the Next 100 Years, 75

CAL.

L.

REV.

817,

828-29

(1987);

Donald F. Turner, Symposium: Anticipating Antitrust's Centennial: Com-

ment: Antitrust in the Next 100 Years, 75

CAL.

L.

REV.

797, 807, (1987);

Andrew F. Popper, The Antitrust System: An Impediment to the Develop-

ment

of

Negotiation Models, 32

AM.

U. L. REv. 283, 311 (1983).

2Among the large number of significant advances in recent years

that are not necessarily proenforcement or antienforcement are: 1. The

development of new econometric techniques for defining markets and

measuring market power. See Jonathan B. Baker &Timothy Bresnahan,

Empirical

Methods

of

Identifying

and

Measuring

Market

Power,

61

ANTITRUST

L.J. 3(1992). 2. There is today a greater appreciation

for innovation as opposed to static efficiency. See

ANTITRUST,

INNOVATION,

AND

COMPETITIVENESS

(Thomas A. Jorde &David J. Teece eds., 1992.

3. There is now a greater understanding of the motives underlying busi-

ness behavior. Compare, for example, our current understanding of the

procompetitive and anticompetitive effects of vertical restraints with the

state of knowledge of the field in 1976. See, e.g., Alan A. Fisher et al.,

Do the

DOJ

Vertical

Restraints

Guidelines

Provide

Guidance? 32

ANTITRUST

BULL.

609 (1987);

IMPACT

EVALUATIONS

OF

FEDERAL

TRADE

COMMISSION'S

VERTICAL

RESTRAINTS

CASES

(Ronald N. Lafferty et aI., eds.,

Federal Trade Commission Publication 1984), reprinted in 19

JOURNAL

OF

REPRINTS

FOR

ANTITRUST

LAW

&

ECON.

No.2

(1989);

THOMAS

OVERSTREET,

RESALE

PRICE

MAINTENANCE:

ECONOMIC

THEORIES

AND

EMPIRICAL

EVIDENCE

(Federal Trade Commission Staff Report, 1983).