Reforming Antitrust

Industrial consolidation, digital platforms, and changing political views have spurred debate about the interplay between public and private power in the United States and have created a bipartisan appetite for potential antitrust reform that would mark the most profound shift in US competition policy in the past half-century. While neo-Brandeisians call for a reawakening of antitrust in the form of a return to structuralism and a concomitant rejection of economic analysis founded on competitive effects, proponents of the status quo look on this state of affairs with alarm. Scrutinizing the latest evidence, Alan J. Devlin finds a middle ground. US antitrust laws warrant revision, he argues, but with far more nuance than current debates suggest. He offers a new vision of antitrust reform, achieved by refining our enforcement policies and jettisoning an unwarranted obsession with minimizing errors of economic analysis.

Introduction; Part I. Antitrust Today: 1. Competition Law's role; 2. Antitrust – Fact, fiction, and the unknown; 3. The missing link – concentration and market power; Part II. The Case for Change: 4. Warning signs in the economy – has competition declined?; 5. A liberal call to arms, but is deconcentration the answer?; 6. Testing the neo-brandeisian vision; Part III. Antitrust Reform: 7. Taking a finger off the scale – revisiting decision theory; 8. Rethinking the consumer-welfare standard; 9. The antitrust evolution; Conclusion. Key recommendations.

Alan J. Devlin is a partner with Latham & Watkins LLP and was Acting Deputy Director of the FTC's Bureau of Competition. He is also Adjunct Professor at Georgetown University Law Center. His publications include Antitrust & Patent Law, Principles of Law & Economics, and over thirty articles published at Stanford, Harvard, Yale, Berkeley, Northwestern, and elsewhere.