The U.S. antitrust system is undergoing a profound reassessment.  Many events and commentaries have inspired this upheaval.  Among the most important is an inquiry conducted over the past two years by the House Judiciary Antitrust Subcommittee on Antitrust, Commercial and Administrative Law. The Report nominally addresses “competition in digital markets,” but its policy agenda is much broader. The Majority Staff proposes to fundamentally redesign basic elements of the entire U.S. antitrust system, not only concepts involving big tech. The Majority Staff urges Congress to repudiate, in whole or in part, fifteen court decisions. The broader implications of these proposals have received little attention. In this essay, we pose questions about the Report’s larger implications in three areas: (1) the restatement of antitrust system objectives; (2) doctrinal changes involving antitrust procedure; (3) doctrinal changes involving antitrust law’s substantive commands. Overall, we worry that the Report, in its abbreviated discussion of doctrinal reforms, has not come to grips with the administrability implications of overriding certain precedents and replacing them with new decision-making principles.

By William E. Kovacic & D. Daniel Sokol1

 

I. INTRODUCTION

The U.S. antitrust system is undergoing a profound reassessment. In several areas of antitrust enforcement, the searching reexamination of the system’s aims, methods, and effectiveness is having e

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