Administrative Antitrust

Posted by Social Science Research Network

Administrative Antitrust – Justin (Gus) Hurwitz (University of Nebraska at Lincoln – College of Law)

ABSTRACT: Antitrust has long been treated as exceptional by the courts. This article argues that the Supreme Court is moving away from this exceptionalist treatment of antitrust, and is working to bring antitrust within a normalized administrative law jurisprudence. That is, we are moving into an era of Administrative Antitrust, where, to the extent possible, antitrust matters are to be handled in the first instance by administrative agencies.

This transition to administrative antitrust results from three factors in the Supreme Court’s recent jurisprudence: the Court’s growing discomfort with the vicissitudes of economic theory; the Court’s preference for agencies, with Congressionally-delegated policy-making authority, to make policy decisions instead of the courts; and the Court’s growing preference for generalized administrative procedure over field-specific law.

To make this argument, this article presents a new synthesis of the Court’s recent antitrust and regulatory cases, using them to argue that in the modern administrative state, our traditional approach to antitrust is backwards: where possible, courts should embrace agency jurisdiction over antitrust issues, and exercise the same procedural oversight over substantive agency decisionmaking that characterizes the relationship between agencies and the courts in every other area of regulatory law. In antitrust terms, this can be seen as a strong revitalization of the implied repeal doctrine; in Constitutional terms, this can be seen as based on a separation of powers understanding, one that is driving much of the Court’s anti-exceptionalism agenda.

This argument is largely descriptive, describing the developing state of antitrust law under principles of modern administrative law. The normative conclusion is more complex: while the trajectory suggested in this article is sound as a matter of administrative and regulatory law, it paints a potentially troubling picture for the future of sound antitrust law.