Edited by Einer R. Elhauge
Chapter 12: Antitrust and Regulation
Howard A. Shelanski* INTRODUCTION Antitrust enforcement has long helped to prevent anticompetitive conduct and protect consumer welfare in regulated industries. The federal courts were long reluctant to allow a firm’s regulated status to immunize it from antitrust suits. Over the past decade, however, the Supreme Court has signaled a weakening of that reluctance. Notably, the Court’s decisions in Credit Suisse v. Billing1 and Verizon v. Trinko2 have reduced the scope of antitrust enforcement against regulated firms in important circumstances. This chapter analyses the reasoning and potential consequences of the Court’s recent decisions and discusses some possible future directions for antitrust policy in regulated markets. Section I of this chapter describes the relationship between antitrust and regulation before 2004 and examines how the Supreme Court changed that relationship through its decisions in Trinko and Credit Suisse. Section II then offers a critique of the Court’s rationale for limiting antitrust in regulated markets and discusses some important questions that the Court’s decisions leave open. Section III discusses some suggestions for change that could improve on the current state of the law while still addressing the concerns that motivated the Supreme Court to adopt its restrictive stance toward antitrust enforcement in regulated industries. Section IV concludes. I DOCTRINAL EVOLUTION OF REGULATORY IMMUNITY FROM ANTITRUST LAW Before 2004, the federal courts did not view it as novel or surprising for antitrust agencies or private parties to intervene against conduct subject to regulation. In 1963, for example, the Supreme Court rejected the New York Stock...
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