Antitrust Law for the New Administration

Co-Presented by the American Antitrust Institute & the Silicon Flatirons Center

Antitrust law remains, as Robert Bork once put it, “at war with itself.” In a recent episode, the war of words was quite literal, as the Justice Department and the Federal Trade Commission publicly sparred over the proper standards for the law of monopolization under the Sherman Act. Notably, the criticisms that Bork once leveled in the 1970s–that antitrust law viewed “big as bad,” too quickly condemned vertical relationships, and used per se rules too liberally–are no longer applicable. Nonetheless, over the last several years, culminating in its recent report on the state of monopolization law, the Department of Justice has suggested that concerns over “false positives” still counsel against aggressive antitrust enforcement and has, in exercising its oversight authority, displayed a high level of reticence in challenging mergers.

With a new administration taking office and the publication of the American Antitrust Institute (AAI) report on “The Next Antitrust Agenda: The American Antitrust Institute’s Transition Report on Competition Policy to the 44th President of the United States”, it is an opportune occasion to evaluate the state of antitrust law and practice. Just over one year ago, the Antitrust Modernization Commission evaluated the state of antitrust law and largely embraced the status quo, declining to call for substantial changes to the doctrines, institutions, or practices of antitrust enforcement. The AAI report, by contrast, highlights a series of issues that merit attention. In this conference, we will evaluate the issues at the foresight of antitrust policy, placing them in one of four categories:

1. Monopolization, buyer power, and intellectual property;
2. Merger review;
3. Antitrust and regulated industries; and
4. Strategic planning, institutional strategies, and toward a research agenda for competition policy.

To spur a thoughtful and engaged discussion around such issues, we will bring together a leading group of policymakers, academics, and practitioners for a one-day conference.