The Political Economy of the Decline of Antitrust Enforcement in the United States
Antitrust enforcement in the United States has declined since the 1960s. Building on several new datasets, we argue that this decline did not reflect a popular demand for weaker enforcement or any other kind of democratic sanction. The decline was engineered by unelected regulators and judges who, with a few exceptions, did not express skepticism about antitrust law in confirmation hearings. We find little evidence that academic ideas played an important role in the decline of antitrust enforcement except where they coincided with the interests of big business, which appears to have exercised influence behind the scenes.
The authors would like to thank Bill Kovacic, Tina Miller, Marc Winerman, Andrew Gavil, Daniel Crane, Fiona Scott Morton, Matt Stoller, Stefan Bechtold, Amit Zac, Gerard Hertig, Inge Graef, Jens Prufer, Giorgio Monti, Anna Tzanaki, Jens-Uwe Frank, Andrew Vivian, Frederic Marty, Vardges Levonyan, and participants at workshops and conference panels organized by the Antitrust Law Journal, Tilburg Law School, the University of Mannheim, the Global Competition Review, the University of Cote d’Azur, CRESSE and ASCOLA for comments on different stages of this article. We also thank Lee Epstein for sharing her data on the business-friendliness scores; Simcha Barkai for sharing his data on DOJ antitrust lawsuits; Erik Peinert for sharing with us several memo he identified in the Reagan Library; and Dino Christenson for sharing the data on amicus briefs. Finally, we thank Sima Biondi and Grant Strobl for superb research assistance. The views expressed herein are those of the authors and do not necessarily reflect the views of the National Bureau of Economic Research.
Eric A. Posner
Eric Posner is currently on leave from the University of Chicago and serves in the Antitrust Division of the Department of Justice. The views in this paper do not necessarily reflect those of the Department of Justice.