Taking Antitrust Away from the Courts

Taking Antitrust Away from the Courts provides a set of recommendations to restructure the antitrust laws and agencies in order to enhance the government’s ability to enforce antitrust laws more effectively and more transparently.

A small number of firms hold significant market power in a wide variety of sectors of the economy, leading commentators across the political spectrum to call for a reinvigoration of antitrust enforcement. But the antitrust agencies have been surprisingly timid in response to this challenge, and when they have tried to assert themselves, they have often found that hostile courts block their ability to foster competitive markets. In other areas of law, Congress delegates power to agencies, agencies make regulations setting standards, and courts provide deferential review after the fact. Antitrust doesn’t work this way. Courts–made up of non-expert, unaccountable judges–set much of antitrust policy. This report provides a set of recommendations to take antitrust away from the courts–to restructure the antitrust laws and agencies in order to enhance the government’s ability to enforce antitrust laws more effectively and more transparently.

Taking Antitrust Away From the Courts: A Structural Approach to Reversing the Second Age of Monopoly Power was released alongside The Effective Competition Standard, a paper by Marshall Steinbaum and  Maurice E. Stucke. Steinbaum and Stucke offer an alternative to the consumer welfare standard. Ambiguous and inadequate, the consumer welfare standard identifies threats to competition only by the potential consequences for consumers and ignores adverse effects on workers, suppliers, product quality, and innovation.

Together, the papers provide a progressive blueprint for a robust 21st-century antitrust regime that can begin to address today’s market power crisis.