Does Antitrust Need to be Modernized?

Abstract

Economics has had an enormous positive effect on the evolution of antitrust policy over the last 30 years or so. However, the evolving forces of technology and globalization, together with experience gained over time, suggest that further modernization is in order. This paper addresses a number of controversial antitrust doctrines that need fixing, or at least some modernizing. Specifically, I analyze market definition; the interaction of intellectual property and antitrust law; certain types of exclusionary conduct (tying and bundling discounts); and procedural issues involving economic matters such as damage multiples, the right to sue, and laws of contribution. I am currently Deputy Assistant Attorney General for Economic Analysis in the Antitrust Division of the U.S. Department of Justice and have served as a Commissioner on the Congress-appointed Antitrust Modernization Commission (AMC). While I've drawn on these experiences in forming my opinions, the views expressed here are my own and do not necessarily reflect those of the AMC or those of the Department of Justice.