Advances in Competition Policy Enforcement in the EU and North America
Edited by Abel M. Mateus and Teresa Moreira
Chapter 11: Competition Law and Policy Modernization: Lessons from the U.S. Common-law Experience
Thomas O. Barnett In this chapter I will discuss the modernization of competition law with a particular focus on single-firm conduct issues.1 In 2002, the U.S. Congress created the Antitrust Modernization Commission (AMC) and charged it with studying the state of antitrust law in the United States.2 The 12-member, bipartisan commission spent three years conducting public hearings and studying a wide range of antitrust issues. In one of their principal recommendations, they concluded that the core U.S. antitrust laws (that is, Sections 1 and 2 of the Sherman Act and Section 7 of the Clayton Act) do not require any fundamental change in their substantive provisions.3 You might reasonably ask how the AMC could have reached such a conclusion. The substantive provisions in those statutes have been the same since 1914. Since that time, there have been dramatic advances in economic and legal analysis of competition issues and almost unimaginable changes in the size and complexity of the economy generally. How could substantial revisions not be warranted? The answer, I submit, is two-fold. First, the U.S. antitrust laws set forth general principles that do not seek to define in detail actions that violate the law. Rather, the courts are charged with interpreting the relatively general statutes as applied to specific facts in particular cases. Second, the courts have approached their task of interpretation under a system of federal common law that enables the incorporation of new learning and new interpretations over I thank Joseph Matelis for his help in preparing...
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