Anti-Trust or Anti-Trustworthy?

Campus Report ^ | June 19, 2009 | Mytheos Holt

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Anti-trust or Anti-trustworthy?

by: Mytheos Holt, June 19, 2009

Last month, assistant Attorney General Christine Varney announced plans by the Obama administration to reinvigorate antitrust policy as a step to solve “cases where monopolists try to use their dominance in the marketplace to stifle competition and harm consumers," a plan legal critics are warning is on a “collision course” with recent precedent set by the Supreme Court, and by extension, with the constitutional rule of law itself.

For his part, DC Appellate Court Justice Douglas Ginsburg argues that recent Supreme Court decisions show a “more informed approach to antitrust cases”—one that focuses on consumer welfare, which Ginsburg called “the touchstone and the appropriate approach to antitrust analysis.” This was in contrast with past decisions, which Ginsburg decried for their arbitrariness, commenting that “size could be punished one day; low pricing could be punished the next day.” The Supreme Court began to abandon this trend during the Reagan years, when a majority of antitrust cases began, for the first time, to be decided in favor of defendants, Judge Ginsburg told an audience at the CATO Institute.

This trend by the Court reached its peak during the Clinton years when, Ginsburg told his audience, 100 percent of all antitrust cases were decided in favor of the defense. By the time Bush took office, this percentage was still in the high 80’s, a figure that remained in place throughout the Bush years despite the fact that, according to Carl Shapiro of the Justice Department anti-trust division, “cartel enforcement was clearly the top priority for the justice department during the Bush administration.”

At CATO, Shapiro took a less optimistic view of this trend than Justice Ginsburg, defending antitrust regulations such as cartel enforcement and merger scrutiny as “essential to ensure that markets remain competitive.”...