The Mission and Agenda for State Antitrust Enforcement

DOI10.1177/0003603X9103600405
AuthorLloyd Constantine
Published date01 December 1991
Date01 December 1991
Subject MatterNew Directions in State Enforcement
The Antitrust Bulletin/Winter 1991
The mission and agenda for state
antitrust enforcement
BY LLOYD CONSTANTINE*
835
The New England Antitrust Conference, now in its 24th year, has
traditionally been addressed by the Chairman
of
the Federal Trade
Commission (FTC) and the Assistant Attorney General in charge
of the Antitrust Division
of
the United States Department
of
Jus-
tice (DOJ), who present the government antitrust enforcement
agenda from the perspective of these federal agencies.
Recognizing the increasingly important role
of
the state attor-
neys general in antitrust enforcement and the emerging trend
of
multistate enforcement, the Conference amended its format in
1987 to include the states chief enforcer. This is the third time
that I write and speak in that capacity. On those previous occa-
sions Idescribed the period 1981 to 1987 as a
"dark
age"
for
antitrust when favored economic theory was elevated above mar-
ketplace reality and the rule
of
law, but predicted that the states
*McDermott, Will &Emery, New York City.
EDITOR'S NOTE: The following was an address
presented
at the 24th
Annual New England Antitrust Conference. Harvard Law School, Novem-
ber 2, 1990. At the time, the writer was Assistant Attorney General in
Charge, Antitrust Bureau. Office
of
the Attorney General, New York
State.
C 1992 by FederalLegal Publications,lnc.
836 : The antitrust bulletin
ascendancy foreshadowed an antitrust renaissance.' In 1988, as
the Reagan enforcers left office I called for the establishment
of
a
regime of collective and coordinated enforcement among the fed-
eral and state antitrust agencies.! That idea was embraced by
James Rill, first in his capacity as co-anchor
of
the ABA's Kirk-
patrick II Commission,' which reported on the performance of the
FrC,
and later when Rill was appointed Assistant Attorney Gen-
eral.
On November 12, 1990, the fifth formal meeting
of
what the
three agencies call the Executive Working Group for Antitrust
Enforcement (EWG-A) will convene in Boston. More important
than these formal meetings is the daily interchange among these
agencies. They now share information, cross deputize staff, pro-
vide each other with briefs amicus curiae, and other forms of sup-
port,
and
even
jointly
investigate
under
uniform
civil
investigative demands. Joint litigation is a logical and likely next
step, which I predict will occur in 1991.
There are still serious and principled disagreements among
state and federal enforcers, but these are discussed in an atmos-
phere
of
mutual respect and recognition that the divergences are
balanced by broad areas of consensus.
Rather than describe the many developments that daily add
definition to the new order, one example from merger enforce-
ment will suffice.
In March 1987 when the states unanimously adopted their own
Horizontal Merger Guidelines, the Wall Street Journal reported
the
initiative
as
"an
attack
on the
Reagan
administration's
Constantine, Antitrust Enforcement Today and in the Nineties, 18
J. REPRINTS ANTITRUST L. &ECON. 39
(1988).
2The Antitrust Enforcement Agenda
for
the New Administration:
The State Perspective in
22ND
ANNuAL
NEW
ENGLAND ANTITRUST CONFER-
ENCE-ANTITRUST
AND A NEW ADMINISTRATION: PRESSURES FOR
NEW
PER-
SPECTIVES
(MCLE),
at 1.
3Report
of
the American Bar Association Section
of
Antitrust Law
Special Committee to Study the Role
of
the Federal Trade Commission,
58 ANTITRUST L.J. 43
(1989).

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