This piece is the introduction to a special issue by the Yale Law Journal on ‘Antitrust Enforcement’. I shall review a number of these articles in forthcoming posts.
In the introduction, the authors begin by describing the context in which this special issue of the Yale Law Journal was published. This context is not dissimilar to that which led to the adoption of antitrust rules in the first place: there is a market power problem which may contribute to slow economic growth and to widening economic inequality.
This issue of the Journal tries to lay the foundation for an overarching enforcement agenda ‘in the long, but receding, shadow of the Chicago School, which brought economic analysis to the forefront of antitrust but failed to fully capture the realities of competition and the private actions that can curb it”.
This small piece also explains the basic underpinnings of this new enforcement agenda. In particular, they consider that: “Economic analysis lies at the center of antitrust analysis as an indispensable tool for establishing harm or benefit from firms’ actions. Though the Chicago School relied on economics to criticize the antitrust rules of an earlier era, economic analysis should not be considered as synonymous with opposition to enforcement. The discipline of economics has developed many tools that identify and measure anticompetitive conduct. (…) Economic tools are powerful and neutral and can be used for assessment of proposed remedies and enforcement policies.”
The authors also consider that this issue of the Yale Law Journal illustrates three large themes important to the future of antitrust. First, competitive harm today may arise from business arrangements far more diverse than horizontal agreements. In fact, competitive harms and exclusionary conduct can result from any number of corporate arrangements, including horizontal shareholding in concentrated product markets, standard-setting, and a number of vertical arrangements. Second, case law should reflect economic thinking. Third, market forces or market entry will not inevitably correct under-enforcement: a dominant incumbent can use its profits to buy up small entrants, build entry barriers, or enlist a regulator’s support to suppress rivalry.
Ultimately, the authors argue that it is time to reassess the assumption that markets will always, and in a timely way, self-correct. For this reason, enforcers must be vigilant in their protection of the competitive process.