The institutions of antitrust law: How structure shapes substance

Michigan Law Review

Volumn 110, Issue 6, 2012, Pages 1019-1044

  Kovacic, William E ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 84859532943     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (123)

1. Graham T. Allison, Essence of Decision: Explaining the Cuban Missile Crisis (Little, Brown and Co. 1971).
2. See, e.g., Steve Smith, Allison and the Cuban Missile Crisis: A Review of the Bureaucratic Politics Model of Foreign Policy Decision-Making, 9 Millenium: J. Int'l Stud. 21, 21 (1980) ("Allison's work on conceptual models of decision-making and the Cuban missile crisis has been one of the seminal studies in the history of international relations. The work is now summarised in most American textbooks on international relations and virtually all monographs on foreign policy analysis refer to it. ").
3. Graham T. Allison, Essence of Decision: Explaining the Cuban Missile Crisis (Little, Brown and Co. 1971). 265.
4. Graham T. Allison, Essence of Decision: Explaining the Cuban Missile Crisis (Little, Brown and Co. 1971). 266.
5. Graham T. Allison, Essence of Decision: Explaining the Cuban Missile Crisis (Little, Brown and Co. 1971). 267-68.
6. See Barton J. Bernstein, Book Review, Foreign Pol'y, Spring 1999, at 121 (discussing impact of Essence of Decision on the analysis of bureaucratic decisionmaking).
7. Professor of Law, University of Michigan Law School.
8. Three single-volume landmarks that deal mainly with substantive standards are Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself (Free Press 1993) (1978)
9. Herbert Hovenkamp, The Antitrust Enterprise: Principle and Execution (1st paperback ed. 2008)
10. Richard A. Posner, Antitrust Law (2d ed. 2001).
11. For example, a major influence in the economic literature has been the work of Douglass North and others associated with what is called the "New Institutional Economics. " E.g., Douglass C. North, Institutions, Institutional Change and Economic Performance (1990)
12. Douglass C. North, Economic Performance Through Time, 84 Am. Econ. Rev. 359 (1994).
13. See, e.g., Public Choice and Regulation: A View from Inside the Federal Trade Commission (Robert J. MacKay et al. eds., 1987) (collecting essays, most authored by economists, on structure, operation, and performance of the FTC).
14. E.g., Luke M. Froeb et al., Essay, The Economics of Organizing Economists, 76 Antitrust L.J. 569 (2009) (discussing how the placement of economists within an antitrust agency affects their influence on enforcement decisions).
15. See James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It (1991) (describing the influence of organizational arrangements on the performance of U.S. government agencies)
16. see also Marc Allen Eisner, Antitrust and the Triumph of Economics: Institutions, Expertise, and Policy Change 119-83 (1991) (describing how institutional adjustments at the DOJ and the FTC in the 1960s and 1970s increased the role of economists in decisionmaking in the two U.S. antitrust agencies)
17. Stephen Wilks, In the Public Interest: Competition Policy and the Monopolies and Mergers Commission (1999) (discussing the evolution of the competition policy system in the United Kingdom ("UK") from late 1940s through late 1990s).
18. See, e.g., Robert A. Katzmann, Regulatory Bureaucracy: The Federal Trade Commission and Antitrust Policy (1980) (examining the structure and operations of the FTC)
19. Suzanne Weaver, Decision To Prosecute: Organization and Public Policy in the Antitrust Division (1977) (examining the structure and operations of DOJ's Antitrust Division).
20. 1-3 Phillip Areeda & Donald F. Turner, Antitrust Law (1978).
21. There are other noteworthy scholarly contributions by lawyers. For example, in the early 1980s, Kenneth Clarkson (an economics professor) and Timothy Muris (a law professor) coauthored an influential examination of the structure, management, and operations of the FTC. Kenneth W. Clarkson & Timothy J. Muris, Commission Performance, Incentives, and Behavior, in The Federal Trade Commission Since 1970, at 280 (Kenneth W. Clarkson & Timothy J. Muris eds., 1981).
22. In chapter eight of the first edition of their administrative law casebook, Administrative Law and Regulatory Policy, Stephen Breyer and Richard Steward presented a detailed case study of the FTC that focused on the agency's organization and management. Stephen G. Breyer & Richard B. Stewart, Administrative Law and Regulatory Policy 725-858 (1979).
23. Recent papers by scholars such as Daniel Sokol, Michael Trebilcock, and Edward Iacobucci have focused needed attention on institutional arrangements and the globalization of antitrust policy. See, e.g., D. Daniel Sokol, Monopolists Without Borders: The Institutional Challenge of International Antitrust in a Global Gilded Age, 4 Berkeley Bus. L.J. 37 (2007)
24. Michael J. Trebilcock & Edward M. Iacobucci, Designing Competition Law Institutions: Values, Structure, and Mandate, 41 Loyola U. Chi. L.J. 455 (2010).
25. The special features of the U.S. system stand out by comparison in Professor Crane's chapters on the European competition regime, chapter 10, and the development of new competition systems over the past forty years or so, chapter 11. The U.S. system is unique in its diversity of prosecutorial mechanisms. Many jurisdictions feature some multiplicity of authority to prosecute the law, but none match the elaborateness of the U.S. framework. Consider four of the oldest competition systems. Canada has a single national competition agency and private rights of action. Canada's provinces and territories lack power to enforce the national competition laws. The UK has two national competition agencies (the Office of Fair Trading and the Competition Commission), and private rights of action are available for victims of infringements to recover damages and seek interim relief. The two UK competition agencies do not have concurrent, overlapping competence to prosecute violations, and the UK antitrust laws do not delegate enforcement powers to political subdivisions. The European Union ("EU") has a single prosecutorial authority (the Directorate for Competition, or "DG Comp"). Germany, the oldest competition system among the original EU member states, has one national competition enforcement agency and permits private parties to pursue claims for relief. The German system gives the country's provinces a role in monitoring compliance with the national law.
26. The extent of the discretion of federal judges to determine the reach of the Sherman Act through their interpretations of its open-ended terms was apparent from the earliest decades of the antitrust system. In Standard Oil Co. v. United States, 221 U.S. 1 (1911)
27. The Supreme Court concluded that the Sherman Act's seemingly categorical prohibition of "every" agreement that restrained trade only forbade compacts that unreasonably restrained trade. Standard Oil Co. v. United States, 221 U.S. 59 (1911).
28. The origins and significance of this ruling are discussed in James May, The Story of Standard Oil Co. v. United States, in Antitrust Stories 7 (Eleanor M. Fox & Daniel A. Crane eds., 2007).
29. It is no accident that various Supreme Court decisions have noted the constitutional quality of the antitrust statutes. See United States v. Topco Assocs., Inc., 405 U.S. 596, 610 (1972) ("Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. ").
30. As Professor Crane explained, The deliberate design features of the FTC tell us relatively little about the FTC's real structure as an institution.... [T]he way that the FTC functions in the antitrust arena is a product of its history and development, its interaction with other legal and economic institutions, and its molding by external political, social, and economic forces. P. xiii.
31. Christopher Clague, The New Institutional Economics and Economic Development, in Institutions and Economic Development: Growth and Governance in Less-Developed and Post-Socialist Countries 13, 18 (Christopher Clague ed., 1997).
32. See p. xii ("In economic theory, the category 'institution' is so capacious as to include virtually everything that a law student would study in an antitrust course. ").
33. See, e.g., John Fingleton, Chief Exec., Office of Fair Trading, UK Competition Policy: The First Decade, Speech at the 40th Anniversary of the Cleary Gottlieb Steen & Hamilton LLP London Office (May 11, 2011), available at http:// www.oft.gov.uk/shared_oft/speeches/2011/0911.pdf (discussing the prioritization process that emphasizes development of cases with high economic impact).
34. This is a central theme of the dialogue between two former FTC chairmen, Timothy Muris and Robert Pitofsky, in More than Law Enforcement: The FTC's Many Tools-A Conversation with Tim Muris and Bob Pitofsky, 72 Antitrust L.J. 773 (2005).
35. See, e.g., Fed. Trade Comm'n, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy (2003), available at http://www.ftc.gov/ os/2003/10/innovationrpt.pdf (proposing reforms to U.S. system of patent law and policy).
36. These possibilities are considered in William E. Kovacic & Andreas P. Reindl, An Interdisciplinary Approach to Improving Competition Policy and Intellectual Property Policy, 28 Fordham Int'l L.J. 1062, 1064-67 (2005).
37. The abuse of dominance litigation in the EU involving Magill and IMS Health can be characterized as an effort to use competition law enforcement to protect an improvident grant of copyright protection. The antitrust cases involving Magill and IMS Health are discussed in Christian Ahlborn et al., The Logic & Limits of the "Exceptional Circumstances Test" in Magill and IMS Health, 28 Fordham Int'l L.J. 1109 (2005).
38. See pp. 56-63 (describing judicial "backlash" to perceived excesses of private litigation).
39. P. 63 (describing doctrinal spillovers from judicial decisions in private cases into the resolution of antitrust cases filed by public agencies).
40. Stephen Calkins, Summary Judgment, Motions To Dismiss, and Other Examples of Equilibrating Tendencies in the Antitrust System, 74 Geo. L.J. 1065, 1067 (1986).
41. Section 1 of the Sherman Act proscribes "[e]very contract, combination... or conspiracy, in restraint of trade. " 15 U.S.C. § 1 (2006). Section 2 of the statute provides that "[e]very person who shall monopolize... shall be deemed guilty of a felony. " Stephen Calkins, Summary Judgment, Motions To Dismiss, and Other Examples of Equilibrating Tendencies in the Antitrust System, 74 Geo. L.J. 1065, 1067 (1986). § 2.
42. Section 5 of the FTC Act authorizes the Commission to proscribe "[u]nfair methods of competition" and sets the framework for the agency's administrative process. FTC Act § 5, 15 U.S.C. § 45 (2006)
43. see also D. Bruce Hoffman & M. Sean Royall, Developments, Administrative Litigation at the FTC: Past, Present, and Future, 71 Antitrust L.J. 319 (2004) (describing FTC's administrative adjudication authority). Section 6 of the FTC Act allows the Commission to "gather and compile information" that concerns persons subject to the FTC Act and "[t]o make public from time to time such portions of the information" that are "in the public interest. " FTC Act § 6, 15 U.S.C. § 46(a), 46(f)
44. See also James C. Cooper et al., Theory and Practice of Competition Advocacy at the FTC, 72 Antitrust L.J. 1091 (2005) (discussing FTC's authority to collect information, issue reports, and perform advocacy functions).
45. See Ellis Hawley, Three Facets of Hooverian Associationalism: Lumber, Aviation, and Movies, 1921-1930, in Business-Government Cooperation 1917-1932: The Rise of Corporatist Policies 213 (Robert F. Himmelberg ed., 1994) (describing associationalism movement).
46. Neil Duxbury, Patterns of American Jurisprudence 2-3 (1995).
47. Marc Winerman, The Origins of the FTC: Concentration, Cooperation, Control, and Competition, 71 Antitrust L.J. 1, 15-54 (2003).
48. Marc Winerman, The Origins of the FTC: Concentration, Cooperation, Control, and Competition, 71 Antitrust L.J. 1, 15-27 (2003).
49. Marc Winerman, The Origins of the FTC: Concentration, Cooperation, Control, and Competition, 71 Antitrust L.J. 1, 27-32 (2003).
50. Marc Winerman, The Origins of the FTC: Concentration, Cooperation, Control, and Competition, 71 Antitrust L.J. 1, 46-48 (2003).
51. Marc Winerman, The Origins of the FTC: Concentration, Cooperation, Control, and Competition, 71 Antitrust L.J. 1, 46-48 (2003). (citation omitted) (internal quotation marks omitted).
52. 15 U.S.C. §§ 13, 14 (2006) (prohibitions on price discrimination and agreements not to use the goods of a competitor).
53. 15 U.S.C. § 18 (prohibition against anticompetitive mergers).
54. 15 U.S.C. § 45 (providing for establishing of the FTC).
55. 15 U.S.C. § 46 (providing power to conduct investigations and prepare reports).
56. 15 U.S.C. § 48 (authorizing the FTC to advise federal courts on the formulation of remedies in antitrust cases).
57. Regarding the multiplicity of legislative preferences reflected in the measure adopted as the FTC Act, see Marc Winerman, The Origins of the FTC: Concentration, Cooperation, Control, and Competition, 71 Antitrust L.J. 74-88 (2003).
58. On the legislative compromises embedded in the 1914 legislation, see Marc Winerman & William E. Kovacic, Outpost Years for a Start-Up Agency: The FTC from 1921-1925, 77 Antitrust L.J. 145, 150-55 (2010).
59. Marc Winerman, The Origins of the FTC: Concentration, Cooperation, Control, and Competition, 71 Antitrust L.J. 178, 181, 202-03 (2003) (describing the failure of the early FTC to provide well-reasoned rationales for its administrative decisions).
60. One of the Commission's first reported cases challenged supplier deception as an unfair method of competition. The Commission observed that when deception occurs, "there also results a damage to the trade and manufacturers who deal in silk products. " Circle Cilk Co., 1 F.T.C. 13, 15 (1916)
61. see also FTC v. Winsted Hosiery Co., 258 U.S. 483 (1922)
62. Affirming FTC's challenge to untruthful advertising as unfair method of competition and emphasizing that misrepresentations about the content of clothing diverts trade from honest manufacturers). For an analysis of the development of the FTC's early program to challenge false advertising, see Richard Tedlow, From Competitor to Consumer: The Changing Focus of Federal Regulation of Advertising, 1914-1938, 55 Bus. Hist. Rev. 35 (1981).
63. The Wheeler-Lea Act of 1938 gave the FTC authority to condemn "unfair or deceptive acts or practices in commerce. " Wheeler-Lea Act, ch. 49, sec. 3, § 5(a), 52 Stat. 111 (1938) (amending FTC Act § 5(a), 15 U.S.C. § 45(a)
64. see also Sidney M. Milkis, The Federal Trade Commission and Consumer Protection: Regulatory Change and Administrative Pragmatism, 72 Antitrust L.J. 911, 913-14 (2005) (discussing enactment of Wheeler-Lea legislation).
65. See, e.g., Federal Trade Commission, Blue Sky Report: Federal and State Regulation of the Sale of Securities (1921) (discussing FTC and other efforts to control misrepresentation in the sale of securities).
66. See Marc Winerman, The FTC at Ninety: History Through Headlines, 72 Antitrust L.J. 871, 880 n.44 (2005) (reviewing the creation of Securities and Exchange Commission and debates over the FTC's role in securities regulation).
67. Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111-203, 124 Stat. 1376 (2010). Title X of the legislation creates a new Bureau of Consumer Financial Protection and transfers most FTC rulemaking responsibilities and some reporting duties under various consumer financial laws to the new Bureau. The establishment and operations of the new institution are examined in John E. Villafranco & Kristin A. McPartland, New Agency, New Authority: What You Need To Know About the Consumer Financial Protection Bureau, Antitrust Source (Dec. 2010), available at http://www.americanbar.org/content/ dam/aba/publishing/antitrust_source/Dec10_FullSource.authcheckdam.pdf.
68. Compared with the DOJ's Antitrust Division, the FTC has a more diversified, elastic mandate and a more diversified range of policymaking tools. The relatively open-ended mandate of section 5, with its prohibitions against unfair methods of competition and unfair or deceptive acts or practices, gives the Commission a more adaptable platform to address emerging commercial phenomena and demands for new forms of government intervention. The combination of prosecutorial, adjudicative, rulemaking, investigative, and reporting powers gives the agency more flexible means to shape policy, including the issuance of studies that recommend or inspire new legislative measures. The significance and application of these capabilities is analyzed in William E. Kovacic, The Federal Trade Commission at 100: Into Our 2nd Century; The Continuing Pursuit of Better Practices 110-43 (Jan. 2009), available at http://www.ftc.gov/ftc/workshops/ftc100/docs/ftc100rpt.pdf.
69. The FTC is the principal U.S. national data protection and privacy authority. This role originated in the adoption in the 1960s and early 1970s of federal credit practices statutes such as the Fair Credit Reporting Act. See Fed. Trade Comm'n, 40 Years of Experience with the Fair Credit Reporting Act: An FTC Staff Report with Summary of Interpretations (July 2011), available at http://www.ftc.gov/os/2011/ 07/110720fcrareport.pdf (discussing implementation of the Fair Credit Reporting Act). The FTC's privacy and data protection program is described in Fed. Trade Comm'n, Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers (Dec. 2010), available at http://www.ftc.gov/os/2010/12/ 101201privacyreport.pdf.
70. See, e.g., FTC Asked To Probe Gas Price Gouging, Fox News Sept. 2, 2005, http://www.foxnews.com/story/0,2933,168272,00.html (describing requests by legislators for the FTC to conduct an investigation of gasoline price increases).
71. Energy Independence and Security Act of 2007, Pub. L. No. 110-140, §§ 811-815, 121 Stat. 1492, 1723-24 (2007) (codified in 42 U.S.C. §§ 17301-05) (prohibiting the manipulation of wholesale petroleum markets).
72. Prohibitions on Market Manipulation, 74 Fed. Reg. 40,686 (Aug. 12, 2009) (codified at 16 C.F.R. pt. 317) (forbidding the manipulation of petroleum wholesale markets).
73. In 2011, the FTC began an investigation into possible violations of the rule in response to letters from members of Congress who insisted that the Commission apply its new authority. Ayesha Rascoe & Roberta Rampton, US FTC Probes Possible Oil Market Manipulation, Reuters, June 20, 2011, available at http://www.reuters.com/article/ 2011/06/20/us-oil-ftc-probe-idUSTRE75J6J020110620.
74. There are many accounts of interservice rivalry among the U.S. armed forces. For an account that underscores the tension between the Air Force and the Navy, see John Melchner, Managing the Budget Process, J. Pub. Inquiry, Fall/Winter 1998, at 11, 13, available at http://www.ignet.gov/randp/jpifw98.pdf. On the use of interservice rivalry to spur competition to devise superior solutions to defense mission needs, see Thomas L. McNaugher, New Weapons, Old Politics: America's Military Procurement Muddle 38-48 (1989).
75. Section 7 of the Clayton Act authorizes the DOJ and the FTC to challenge anticompetitive mergers. The Clayton Act is silent on the question of which agency should review a transaction over which both have jurisdiction. In the first decades of the Clayton Act, there was at least one instance in which both agencies conducted independent, concurrent reviews of the same transaction. See Marc Winerman & William E. Kovacic, The William Humphrey and Abram Myers Years: The FTC from 1925 to 1929, 77 Antitrust L.J. 701, 717-18 (2011) (discussing concurrent DOJ and FTC reviews of the Continental Bread merger).
76. In FTC v. Cement Institute, 333 U.S. 683 (1948).
77. The Supreme Court made clear that the FTC had power to use section 5 to prosecute conduct proscribed by the Sherman Act. This development is documented in Neil W. Averitt, The Meaning of "Unfair Methods of Competition" in Section 5 of the Federal Trade Commission Act, 21 B.C. L. Rev. 227 (1980).
78. 295 U.S. 602 (1935).
79. These enforcement trends are reviewed in William E. Kovacic, Remark, Rating the Competition Agencies: What Constitutes Good Performance?, 16 Geo. Mason L. Rev. 903, 911-12 (2009).
80. Data on FTC appointments from 1915 to 1997 are reviewed in William E. Kovacic, The Quality of Appointments and the Capability of the Federal Trade Commission, 49 Admin. L. Rev. 915 (1997). These data are updated through 2009 in William E. Kovacic, The Federal Trade Commission at 100: Into Our 2nd Century; The Continuing Pursuit of Better Practices 28 (Jan. 2009). The three economists who have served as FTC commissioners are James C. Miller III, George Douglas, and Dennis Yao. All three of these individuals were appointed in the 1980s.
81. Recent FTC horizontal restraints cases illustrate this point. In the past decade, the agency has devoted considerable effort to refine the legal standards governing the application of the rule of reason to horizontal restraints. In three cases, the courts of appeals have affirmed the FTC's finding of liability and generally have endorsed the analytical framework used by the Commission to assess the behavior in question. See Realcomp II, Ltd v. FTC, 635 F.3d 815 (6th Cir. 2011)
82. Tex. Specialty Physicians v. FTC, 528 F.3d 346 (5th Cir. 2008)
83. Polygram Holdings, Inc. v. FTC, 416 F.3d 29 (D.C. Cir. 2005). None of these decisions simply affirmed the FTC on the basis of the agency's decision. All involved some degree of reformulation and selection by the court of appeals. Only when the Commission dismisses one of its complaints is the agency's decision the last word on the case, and the agency's reasoning undergoes no further interpretation or qualification by reviewing courts. See, e.g., Beltone Elecs. Corp., 100 F.T.C. 68 (1982) (dismissing a complaint alleging illegal exclusive dealing)
84. DuPont E.I. de Nemours & Co., 96 F.T.C. 653 (1980) (dismissing a complaint alleging attempted monopolization).
85. Theodore Philip Kovaleff, Business and Government During the Eisenhower Administration (1980)
86. Suzanne Weaver, Decision To Prosecute: Organization and Public Policy in the Antitrust Division (1977) (examining the structure and operations of DOJ's Antitrust Division).
87. Such proceedings include the DOJ's celebration of the twentieth anniversary of the 1982 merger guidelines, the details of which are available at http://www.justice.gov/ atr/public/hmerger.html, and the proceedings of a celebration of the tenth anniversary of the creation of the Antitrust Division's Economic Policy Office, see U.S. Dep't of Justice, Antitrust Div., Econ. Policy Office Discussion Paper 83-13: Tenth Anniversary Seminar on Econ. & Antitrust (Oct. 19, 1983) (on file with Michigan Law Review).
88. Comm. on Indep. Regulatory Comm'ns, Task Force Report on Regulatory Commissions, in Comm'n on Org. of the Exec. Branch of the Gov't, The Independent Regulatory Commissions: A Report to the Congress app. n (1949)
89. E.g., James M. Landis, Report on Regulatory Agencies to the President-Elect (1960).
90. As recently as forty years ago, a broad range of commentators raised basic questions about the FTC's continued usefulness. In the late 1960s, the FTC received vehement criticism from a Ralph Nader-sponsored study and from a blue ribbon panel convened by the American Bar Association. American Bar Association Commission to Study the Federal Trade Commission (1969)
91. Edward F. Cox et al., The Nader Report on the Federal Trade Commission (1969). No such opprobrium was visited upon the Antitrust Division.
92. Fifteen years ago, I concluded that if there were to be only one federal antitrust agency, the Antitrust Division should be the survivor. William E. Kovacic, Downsizing Antitrust: Is It Time To End Dual Federal Enforcement?, 41 Antitrust Bull. 505, 540 (1996).
93. Since then, the FTC has made great strides toward realizing the full potential inherent in its institutional design. See, e.g., William E. Kovacic, The Importance of History to the Design of Competition Policy Strategy: The Federal Trade Commission and Intellectual Property, 30 Seattle U. L. Rev. 319 (2007) (discussing the multifaceted FTC approach to addressing competition policy issues involving intellectual property). As a consequence, the matter of what configuration the U.S. system should take in the future is an extremely difficult question. How does the FTC measure up today with the DOJ as a competition policy institution? Some years ago, during a trip to St. Petersburg, I recall reading an interview in a local guide book with the curator of the Hermitage Museum. The curator was asked if the Hermitage had the greatest collection of art in the world. He answered that the question was very hard to answer, because there were so many magnificent museum collections across the globe. Although I cannot reconstruct his remarks exactly, I recall him ending the interview by saying, "I can assure you one thing. We are not the second. " In the field of competition law in the United States, the FTC is not the second.
94. Since 2000 there have been three noteworthy transatlantic scrapes involving the DOJ. In 2001, the DOJ rebuked the European Commission for its decision to block General Electric's attempt to acquire Honeywell. Press Release, Dep't of Justice, Statement by Assistant Attorney General Charles A. James on the EU's Decision Regarding the GE/Honeywell Acquisition (July 3, 2001), available at http://www.justice.gov/atr/public/press_releases/ 2001/8510.htm. In 2007, the DOJ chastised the EU's Court of First Instance for upholding the ruling of the European Commission that Microsoft had violated the EU's prohibition on abuse of dominance. Press Release, Dep't of Justice, Assistant Attorney General for Antitrust, Thomas O. Barnett, Issues Statement on European Microsoft Decision (Sept. 17, 2007), available at http://www.justice.gov/atr/public/press_releases/2007/226070.htm. In 2009, the DOJ issued a peevish press release commenting on the decision of DG Comp to open a second phase inquiry of Orcale's proposed acquisition of Sun Microsystems. Press Release, Dep't of Justice, Department of Justice Antitrust Division Issues Statement on the European Commission's Decision Regarding the Proposed Acquisition between Oracle and Sun (Nov. 9, 2009), available at http://www.justice.gov/atr/public/press_releases/2009/251782.htm. Shortly after the announcement on the Oracle-Sun transaction, the DOJ cancelled the annual bilateral discussions, which were scheduled to take place in Washington, D.C. in mid-November, between DG Comp and the two U.S. federal agencies.
95. 317 U.S. 341 (1943).
96. For an examination of these phenomena, see James C. Cooper & William E. Kovacic, U.S. Convergence with International Competition Norms: Antitrust Law and Public Restraints on Competition, 90 B.U. L. Rev. 1555, 1561-67 (2010).
97. See California v. Am. Stores Co., 495 U.S. 271 (1990) (states enjoy right under Clayton Act to obtain divestiture to remedy anticompetitive mergers)
98. California v. ARC Am. Corp., 490 U.S. 93 (1989) (upholding validity of state statutes to override limits on recovery by indirect purchasers).
99. On the emergence of states as important participants in merger control, see Lloyd Constantine, The Mission and Agenda for State Antitrust Enforcement, 36 Antitrust Bull. 835 (1991).
100. Lloyd Constantine, The Mission and Agenda for State Antitrust Enforcement, 36 Antitrust Bull. 838-39 (1991).
101. This observation is based on my experience as a commentator on the Microsoft litigation, when I had many conversations with officials from the state attorney general offices and the DOJ, as well as many discussions with journalists who shared with me what they had heard from the same officials about the development of the prosecution's case.
102. Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, 2010 O.J. (C 83) 1. The competition articles of the Treaty, Articles 101-09, may be found at http://ec.europa.eu/competition/antitrust/legislation/ articles.html.
103. Professor Crane observes the following: "In contrast to the relative unruliness of American antitrust federalism, [the EU] system achieves decentralization and power sharing even while ensuring that a single supranational authority can speak in a unified voice for the executive function of EU antitrust enforcement. " P. 203. This coherence is important both for articulating policy within the EU and presenting the EU's views in various international fora in which nations discuss possible standardization of procedures and liability rules for competition policy. Pp. 229-41 (discussing the development of international standards). Without means for building consensus among the U.S. public prosecutors at the national and state levels, the United States will find this coherence elusive, and its voice overseas may be less effective.
104. E.g., Christian Ahlborn et al., Bridging the Transatlantic Divide? The Reform of Europoe's Policy Regarding Dominant Firms, in Rethinking Article 82, 90-92 (Bill Allan et al. eds., 2006) ("Over the last 30 years, the interpretation of Section 2 [of the Sherman Act] has undergone significant changes since the high watermark of intervention by the Supreme Court in the 1960s. This change was triggered by the 'Chicago School' which led to a more rigorous and economics-based approach. ")
105. see also Tony A. Freyer, Antitrust and Global Capitalism, 1930-2004, at 6 (2006) (remarking that from 1970s through end of twentieth century, "advocates of the Chicago School of Economics remade antitrust").
106. See Stephen D. Susman, Business Judgment vs. Antitrust Justice, 76 Geo. L.J. 337, 337 (1987) ("We have sold the soul of competition to the devil, no question about that. As for the devil, there are several to choose from: the Chicago School, certain opinions of the Supreme Court, and [the Reagan] Administration's antitrust policies are chief among them. ")
107. see also John J. Flynn, The Misuse of Economic Analysis in Antitrust Litigation, 12 Sw. U. L. Rev. 335, 344 (1981) (portraying the Chicago School as a "church" and depicting its views as a "theology.... out of touch with its own empirical and moral roots, detached from present-day realities").
108. See, e.g., Robert H. Lande, Comment on Kodak, Chicago Takes It on the Chin: Imperfect Information Could Play a Crucial Role in the Post-Kodak World, 62 Antitrust L.J. 193 (1993).
109. The crucial role of Areeda and Turner in the repositioning of antitrust doctrine also is examined in Herbert Hovenkamp, The Antitrust Enterprise: Principle and Execution (1st paperback ed. 2008) at 35-38.
110. William H. Page, Areeda, Chicago, and Antitrust Injury: Economic Efficiency and Legal Process, 41 Antitrust Bull. 909 (1996).
111. Professor Crane recounts the landmarks in this judicial retrenchment of the U.S. anttirust system. Pp. 59-60. These include Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (strengthening pleading requirements that antitrust plaintiffs must satisfy to avoid a motion to dismiss)
112. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (increasing the availability of summary judgment as a means of dispensing with antitrust claims)
113. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977) (establishing a requirement that a plaintiff demonstrate an antitrust injury as a condition of obtaining damages for asserted antitrust violations).
114. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 61-63 (1977)
115. see also John E. Lopatka, Stephen Breyer and Modern Antitrust: A Snug Fit, 40 Antitrust Bull. 1 (1995) (describing Justice Breyer's antitrust opinions during his tenure on the U.S. Court of Appeals for the First Circuit).
116. I have compiled the estimate of 120 jurisdictions in the following manner: I began by examining membership data compiled by the International Competition Network ("ICN"). See Interview with John Fingleton, Chair of the Steering Group of the International Competition Network, 25 Antitrust 71 (2010) (reviewing ICN membership data). I then reviewed the list of nations that participated in the International Gathering of Experts on Competition Law convened by the United Nations Conference on Trade and Development in November 2010 and in 2011. U.N. Conference on Trade and Dev., Geneva, Switz., Nov. 8-12, 2010, Report of the Sixth United Nations Conference To Review All Aspects of the Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices 21-22, U.N. Doc. TD/RBP/CONF.7/11, Annex II (Jan. 25, 2011). I spoke with attendees at both UN conferences to identify countries that had adopted competition laws and were not ICN members.
117. On the restructuring in France, see Reform of the French Competition Regulatory System: The Conseil de la Concurrence Becomes the Autorité de la Concurrence (Competition Authority), Autorité de la concurrence, http://www.autoritedelaconcurrence.fr/user/ standard.php?id_rub=317 (last visited Sept. 10, 2011). On the restructuring in Portugal, see About Us-Mission, Autoridade da Concorrência, http://www.concorrencia.pt/vEN/A_ AdC/About_Us_mission_and_functions/Pages/About-Us-mission-and-functions.aspx (last visited Sept. 10, 2011) (describing unification of Competition Council and the Directorate of Competition and Trade in 2003). On the restructuring in Spain, see Who We Are, Comisión Nacional de la Competencia, http://www.cncompetencia.es/Inicio/ConocerlaCNC/ QueeslaCNC/tabid/77/Default.aspx (last visited Sept. 10, 2011) (describing Comisión Nacional de la Competencia and noting absorption of the former Tribunal for Defense of Competition).
118. The reforms to Brazil's competition law system are described in Krisztian Katona & Diego Herrera Moraes, Reforms Achieved, But Challenges Ahead: Brazil's New Competition Law, Int'l Antitrust Bull., no. 3, 2011 at 11, available at http:// www.ftc.gov/oia/speeches/2011katona-brazil.pdf.
119. The initiative to reconsider the UK's framework of competition policy implementation is described in Dep't for Bus. Innovation & Skills, A Competition Regime for Growth: A Consultation on Options for Reform (2011), available at http://www.bis.gov.uk/ assets/biscore/consumer-issues/docs/c/11-657-competition-regime-for-growth-consultation.pdf.
120. The most recent comprehensive effort to examine the institutional arrangements of the U.S. antitrust system was the Antitrust Modernization Commission, which published its report in 2007. Antitrust Modernization Comm'n, Report and Recommendations (2007), available at http://govinfo.library.unt.edu/amc/report_recommendation/amc_final_ report.pdf.
121. The panel proposed relatively few adjustments to the framework of U.S. enforcement. The most recent comprehensive effort to examine the institutional arrangements of the U.S. antitrust system was the Antitrust Modernization Commission, which published its report in 2007. Antitrust Modernization Comm'n, Report and Recommendations (2007), available at http://govinfo.library.unt.edu/amc/report_recommendation/amc_final_ report.pdf. at 129.
122. See William E. Kovacic, Dominance, Duopoly and Oligopoly: The United States and the Development of Global Competition Policy, Global Competition Rev., Dec./Jan. 2011, at 39 (describing the means by which individual jurisdictions can influence the content of international antitrust standards).
123. See David J. Gerber, Law and Competition in Twentieth Century Europe: Protecting Prometheus (1998).