Antitrust Energy – Article by Barak Orbach & D. Daniel Sokol

From Volume 85, Number 3 (March 2012)

  Antitrust law has been declared a failure, moribund, or possibly just a ghost from the trustbusting era. A quarter of a century ago, Thomas Hazlett declared: “Any responsible historian of American antitrust policy must conclude that, if one takes at face value the assertions that antitrust laws exist to advance competition and protect the consumer, that policy is a failure. The notorious Berkey Photo case may be the flagship of that failed policy.” Hazlett went as far as suggesting it would be “most effective . . . to consider federal enforcement of the antitrust laws to be a per se restraint of trade.” Robert Crandall and Clifford Winston examined the question: “Should the United States pursue a vigorous antitrust policy?” They found “little empirical evidence that past interventions have provided much direct benefit to consumers or significantly deterred anticompetitive behavior.” Other scholars examined whether antitrust was still alive. Yet, recently some stressed that antitrust is not dead, but while “at one time [it] was skewed toward over-enforcement, . . . today if there is any bias it is in the opposite direction.” Statistical figures indicate that, since the 1970s, the volume of civil antitrust litigation is low compared to prior decades. For these reasons and others, Jonathan Baker tried to provide “evidence of the necessity and success of antitrust enforcement.” The Supreme Court, however, voiced skepticism about antitrust litigation. In the fall of 2007, Antitrust therefore posed the question for a special issue: The End of Antitrust As We Know It?



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