Congress is Considering New Antitrust Legislation, We Need Bright-Line Rules

Hello everyone.

Today, Slate published my latest article. I argue if Congress is going to spend time considering new antitrust legislation, it must enact clear bright-line rules. Anything less, as the past century has shown, will lead to continued judicial hijacking and mismanagement.

The short version of the story is that the antitrust laws were endowed with a broad mandate and have deep moral foundations. But by not clearly and explicitly stating what behavior should be illegal, the judiciary has been able to substitute Congress’s judgments about the economy for theirs.

Over the past century, the judiciary has consistently seized unclear statutory language as an opportunity to imposes its economic agenda. When the Sherman Act was enacted in 1890, although it was never intended to apply to labor, the judiciary thought otherwise. Then the judiciary in the 1911 Standard Oil Case limited the Sherman act to conduct that was “unreasonable.”

Congress sought to fix these problems and bolster the Sherman Act with the Clayton Act in 1914. But while Congress did use very plaintiff-friendly language, it was still not clearly and explicitly clear with what it wanted. Once again, the judiciary would seize the opportunity.

In 1930, #SCOTUS decided a case called International Shoe. This case took the Clayton Acts language and modified it to mean “unreasonable” just like the Standard Oil case! The enforcement of the Clayton Act was gutted from 1930 to 1950.

The 1950 amendments to the Clayton Act did induce a wave of strong enforcement but Congress was again not explicitly clear and by the 1970s the Consumer Welfare movement was in full swing and enforcement has been stifled ever since.

Now there was a history of strong antitrust rules, but they were all made by the judiciary and almost all of them have been subsequently reversed. Changing the composition of the judiciary would help, but it would only be a short-term measure.

We need a new statute, and it must have absolutely clear bright-line rules that ban...

• Mergers above a certain size

• Exclusive deals

• Noncompetes

• Monopoly/Oligopoly

And so many more! Without bright-line rules, Congress’s reform efforts will be in vain.

Be sure to check out the full article here.

Here is the first paragraph.

Monopolies dominate the American economy. Last year, House Democrats took the first steps to address this problem by publishing a landmark 450-page report on the exclusionary conduct engaged in by Big Tech over the previous 15 years. Now, Congress has begun a second set of antitrust hearings to determine what remedies it should incorporate into a series of new bills to address the stranglehold of monopolies.

These hearings will continue to catalyze the growing movement against concentrated corporate power in America, but whatever Congress proposes afterward, the legislation must include comprehensive, bright-line rules.

Lastly, here is a cool update. My Open Markets colleague Jackie Filson and I were profiled by the University of Connecticut Magazine back in February. It was a fun interview, and I am so proud to have two degrees from the institution. Make sure you check out the full profile here. And here is a nice picture of the two of us at the University of Connecticut School of Law. :-)