COMPETITION IN ANTITRUST REGULATION: LAW BEYOND LIMITS

Twenty-five years ago, Frank Easterbrook published his essay The Limits of Antitrust, in which he argued for a set of filters that government enforcement authorities and judges could use to test the propriety of a given action under the antitrust laws. That essay aptly exposed serious concerns about expansive use of antitrust laws, especially at the behest of lagging competitors of the enforcement target, contributing to a movement toward less ambitious use of antitrust law in the United States. More recently, changes in academic theories coupled with developments in the law outside the United States have set the stage for a reversal of the forces aligned with Judge Easterbrook's arguments. This article identifies reasons for supporting a more limited deployment of antitrust (competition) law, describes ways in which law in the United States has evolved toward greater congruence with that approach, and explores the forces that are now pulling the law in the opposite direction. Critically, the increased availability of alternative enforcement regimes with relatively low jurisdictional thresholds has created forum-shopping incentives for complainants. At the same time, antitrust regulators frequently will have incentives to behave in ways that encourage forum-shopping. This behavior will threaten to undermine results in line with Judge Easterbrook's work, creating special risks to competition in markets with a dominant firm. [PUBLICATION ABSTRACT]