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Max Huffman, Jun 12, 2015
Antitrust is enjoying a renaissance in national economic policy and in the academy. When I began teaching a decade ago it was common to hear that antitrust was dead or at least unimportant. It was a mistake on the teaching job market to list antitrust as one’s first-choice course to teach. When I joined my institution, the largest law school in the nation’s 16th largest state, antitrust was not on the course list at all.
The academy took its cues from the courts and the federal enforcement agencies. The Rehnquist Supreme Court heard few antitrust cases and, famously, the defendant always won. After some exciting years in the 1990s, the 2000s saw significant retrenchment in federal enforcement everywhere but in the criminal arena. Competition law schemes existed overseas but outside of the western world were largely undeveloped and unused.
In 2015 the picture is very different. Vigorous enforcement by the Obama administration and the Federal Trade Commission, active and sophisticated state agency enforcement, eager participation by regulatory agencies such as the FCC, and a practiced class-action bar give much to study in U.S. antitrust. The Supreme Court has been more active in the field than at any time since the 1970s. Cross-border business puts the relevance of foreign and cross-border enforcement on a par with purely domestic antitrust. In addition to long-standing comp…