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.
Featured News
Redfin Settles $9.2M Commission Inflation Lawsuits
May 7, 2024 by
CPI
DOJ Supports Colorado’s Efforts to Block Kroger-Albertsons Merger
May 7, 2024 by
CPI
Japan Considers Regulation of AI Developers
May 7, 2024 by
CPI
European Commission Extends Decision Deadline for Ita-Lufthansa Merger
May 7, 2024 by
CPI
UK, US and Australia Sanction Senior Leader of LockBit Cybercrime Gang
May 7, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – Economics of Criminal Antitrust
Apr 19, 2024 by
CPI
Navigating Economic Expert Work in Criminal Antitrust Litigation
Apr 19, 2024 by
CPI
The Increased Importance of Economics in Cartel Cases
Apr 19, 2024 by
CPI
A Law and Economics Analysis of the Antitrust Treatment of Physician Collective Price Agreements
Apr 19, 2024 by
CPI
Information Exchange In Criminal Antitrust Cases: How Economic Testimony Can Tip The Scales
Apr 19, 2024 by
CPI