Antitrust Reform — From the Gilded Age to the Digital Age — Way Overdue.

Amy Klobuchar’s ANTITRUST (2021) reviews and assesses antitrust law and regulations from the “Gilded Age” to today’s “Digital Age.”

She declares ‘trickle down economics of Reaganism along with the Chicago School’s ‘law and economics” approach (focusing on shareholder wealth creation) brought only lax antitrust enforcement. And directly led to grotesque corporate concentration and structural economic inequality. Her remedy is to resuscitate government regulation, adopt new legislation, and to counter aggressively conservative federal judges. Especially those most recently appointed by Trump. New rules need to be adopted for domestic and global transactions in this new digital era of domestic and global commerce. Focusing on large multinationals and Internet firms. I agree.

The following are really interesting and instructive passages from her book:

Nowhere do the modern-day competition issue come into deeper focus than with today’s Big Tech companies.

America’s laws have not been updated to track the changes in America’s monopoly landscape. Our Congress refuses to do it. Our enforcement tools are getting rusty. Our competition enforcers don’t have enough resources to effectively take on multibillion-dollar, much less trillion-dollar companies. And American courts are increasingly populated by conservative judges, including on the U.S. Supreme Court.

The remedy? Our antitrust laws — and our enforcers — need to be as sophisticated as today’s corporate titans, and we need judges who will interpret the antitrust laws in a reasonable fashion, from the U.S. Supreme Court on down.

… Extremely complex antitrust issues exist in the international arena.

… International deals pose unique regulatory and national security concerns.

… In addition to national security consideration, the evaluation of proposed international deals means that antitrust agencies in more than one country is involved.

… One particular and pressing global challenge America faces on competition is China.

… Discrimination against foreign companies is forbidden under World Trade Organization rules, but it is difficult to prove.

… The challenge, of course, is how to make America’s antitrust laws, already corrupted by Robert Bork’s ideological worldview relevant once more in an ever-changing business environment. There is — to put it mildly — a major disconnect between marketplace realities and the U.S. Supreme Court’s jurisprudence. 

… Reasonable regulations work in tandem with antitrust laws to protect against abuse of power.  It is now crystal clear that the antitrust laws must be seriously updated and made relevant again.

… A rigorous competition policy evens that playing field, spurs innovation, and reduces consumer prices.

 

In conclusion, this new Gilded Age 2.0 requires serious antitrust reform. U.S. corporate tax laws (as to tax havens and offshore corporations) need to be significantly reformed in this new digital era. But that’s another story.

About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (Schar School of Public Policy).
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