Confronting the Brave New World of Antitrust Federalism

• Published date: 01 December 1991
• Date: 01 December 1991
• DOI: 10.1177/0003603X9103600404
• Author: H. Chester Horn
• Subject Matter: New Directions in State Enforcement

The Antitrust Bulletin/Winter 1991

Confronting the brave new world

of

antitrust federalism

BY H. CHESTER HORN, JR.*

Introduction

821

Two

recent

Supreme

Court

decisions

have

vitalized

the

emergence

of

states

as

forces

to be

reckoned

with

in

the arena of national merger policy. In California v. Ameri-

can Stores.' the Court held that states may secure divestiture

under section 16 of the Clayton Act to remedy mergers that

violate section 7

of

the Act.? That decision broadly endorses

*Deputy Attorney General, California Department

of

Justice.

EDITOR'S NOTE: This article was preparedfor presentation at the Western

Economics Association's 66th Annual Conference.

AUTHOR'S NOTE: With apologies to

ALDOUS

HUXLEY,

THE

BRAVE

NEW

WORLD

(1932) and Lloyd Constantine, Antitrust Federalism, 29

WASHBURN

LJ.

163 (1990). The views expressed in this article are the author's and

mayor

may not reflect the views

of

the California Department

of

Justice.

110 S. Ct. 1853 (1990).

2The American Stores decision interpreted the phrase "injunctive

relief'

found in section 16

of

the Clayton Act. 110 S. Ct. at 1850-61.

While the context of that decision was a section 7 merger case, there is no

reason to believe that the

Court's

broad interpretation

of

the scope

of

relief available under section 16 is limited to merger cases. Indeed, the

Court's acknowledgment that its own prior decisions authorized flexible

"mandatory" injunctions in rejecting the arguments made by American

Stores suggests that no such limitation was intended. [d. at 1860.

e1992by Pcdcral

Lepl

PublicatiDllll. Inc.