CORPORATE CRIME REPORTER
Georgetown
Law Conference Looks at Conservative Influence on Antitrust Policy
21 Corporate Crime Reporter 17, April 18, 2007
A two day conference held this week at Georgetown Law School looked critically at the conservative influence on antitrust policy in the United States.
The conference was the brainchild of Georgetown Law Professor Robert Pitofsky.
Pitofsky, a former chairman of the Federal Trade Commission, is also counsel at Arnold & Porter in Washington, D.C.
The papers presented at the conference, titled Conservative Economic Influence on U.S. Antitrust Policy, will be published in book form early next year by Oxford University Press, Pitofsky said.
In opening remarks to the conference, Pitofsky said that the idea was not to do a “hatchet job” on the Chicago School.
“The idea is to give credit where credit is due, but to identify ways in which modern economic analysis may have overshot the mark,” he said.
“It would be rare to find anyone associated with the antitrust enterprise who doesn’t think that antitrust has served the country well,” Pitofsky said in his opening remarks. “We are deeply committed to a free market. But it would be very difficult to have a free market if private conduct – cartels, monopoly behavior and the like – would distort market forces. Antitrust has prevented that kind of distortion and in the process stimulated efficiency and innovation and generally served consumer welfare well.”
Pitofsky said that there have been “fashions in antitrust.”
In the 1960s, the United States clearly had the most aggressive antitrust policy in the world – “most people today would say over-enforcement protected by an indulgent Warren Court.”
In the 1980s, other than a crackdown on hard core cartels, antitrust enforcement “virtually went to sleep during the Reagan years.”
During the Clinton and Bush I administrations, there were efforts to find a “middle ground between the over-enforcement of the 1960s and the under-enforcement of the 1980s.”
“But through it all, there has been one constant – the increasing influence of economic analysis, usually of a rather conservative sort, sometimes simplistically referred to as the Chicago School, on antitrust policy and enforcement,” Pitofsky said. “And generally speaking, steadily more generous treatment of transactions and behaviors, with the exception of the way we deal with hard core cartels.”
“In the last decade or so, questions have been raised whether in some circumstances, in some respects, conservative economic analysis has led us in the wrong direction,” Pitofsky said. “Not because of errors of fact or errors of law. That’s always going to happen. But because pursuing a rigid conservative ideology in some areas may do more harm than good.”
Pitofsky said the conference was not about selecting the Chicago School as a target – “the world is more complicated than that.”
“Certainly, almost all would agree that antitrust is better today than it was in the 1950s and 1960s, and that’s largely a credit to the kind of rigorous economic analysis – where the Chicago School was the cutting edge,” he said.
It is now “more rigorous, more informed, and less inclined to wander off into hard to measure socio-economic byways – like protecting small business.”
Participants at the conference included Eleanor Fox, Professor of Law, New York University School of Law, Robert Lande, Professor of Law, University of Baltimore School of Law, Harvey Goldschmid, Professor of Law, Columbia Law School, and a former Commissioner of the Securities and Exchange Commission, John Shenefield, Partner, Morgan, Lewis & Bockius, and the former head of the Antitrust Division, and Tom Kauper, Professor of Law, University of Michigan Law School, also the former head of the Antitrust Division.
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