Liberty, equality, and fraternity: Evolution or revolution in antitrust?

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The world of antitrust law in the United States is no stranger to contrasting views and vigorous debate. But in these last few years, the usual skirmishes on enforcement priorities, incremental developments in the courts, and modes of economic analysis gave way to an insurgency that argues that the current system of antitrust enforcement simply does not work the way it ought to prevent anticompetitive mergers and conduct, and that no amount of tinkering around the edges was likely to get that system to where it needed to be. An opening salvo was research highlighted by the Obama administration in 2016, suggesting that concentration levels were rising based on industry census data – across broad classifications like retail, transportation, finance, and utilities – and that firms’ returns on invested capital had increased, coupled with simplistic conclusions that competition was now flagging and that a lack of antitrust enforcement must be to blame. All this might have ended with a call for boosted resources to allow U.S. enforcers to act more aggressively in the years to come, with debate taking the form of just how much those resources should be increased. The reality, however, has been a gathering storm of events giving rise to simultaneous populist movements on both sides of the political aisle, each angling for dramatic antitrust reforms for their own reasons but largely converging on intense scrutiny of four so-called “Tech Titans”: Google, Amazon, Facebook and Apple. And caught between these two sides of the populist coin are yet another two factions: those who might share some concerns about increasing concentration but prefer not to abandon the citadel the consumer welfare standard as the core goal of antitrust law as we know it today, and those who see decades of hard-earned progress in scholarly understanding and the courts under threat of being overrun at the barricades. This article analyzes these major reform proposals and whether they have the potential to fundamentally reshape the American economy. It appears far from clear that they have received a vetting as thorough as they warrant given their wide-reaching effects. Although it is certainly tempting for some to jump headlong into dramatic reforms in this truly fascinating and energized moment in antitrust history, we should use every tool at our disposal to be sure of the course.