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Academic Articles Awards > General Antitrust

The Political Hand in American Antitrust-Invisible, Inspirational, or Imaginary?

Theodore Voorhees Jr., 79(2) Antitrust Law Journal, 2014

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U.S. antitrust, like any other regulatory structure in our democratic system, has always existed within a milieu fraught with politics and in which it was common to find outcomes being attributed, rightly or wrongly, to the pressures of contending political forces. In the modern era, however, the putative role of politics in antitrust has been significantly muted, if not necessarily displaced altogether, by the impact of four factors. Though not all new, these four phenomena in combination have produced over the past four decades an unprecedented level of continuity and regularity in the development and interpretation of modern American antitrust law. First the sheer accumulation of many thousands of precedent-bound court opinions through the common law’s relentless process of gradual accretion has served as an impediment to the kinds of sudden jurisprudential swerves that might otherwise have been the work of contending political forces. Second, and with like effect, there has been widespread acknowledgment within the antitrust field that development of the law to suit a rapidly evolving market economy is best left to judges with lifetime tenure rather than to the legislative branch which is widely understood to be more exposed to the hazards of ad hoc, self-interested decision-making shaped by shifting political constituencies that tend toward bad policy. Third, the steady emergence of a broad, modern consensus that economic theory should serve as the fundamental testing ground for sound antitrust enforcement has on many key issues greatly reduced the range of disagreement among contending groups within the antitrust commentariat. Finally, the growing involvement of multiple, overlapping enforcement facilities—including the two federal antitrust agencies, the antitrust departments of 50 state attorneys general, and the host of plaintiff lawyers who serve everywhere as “private attorneys general”—has ensured that nearly every conceivable theory of antitrust injury and remedy will have its “day in court,” so that no manner of political tempest or partisan inclination could totally stifle the development of an otherwise meritorious antitrust theory.

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