Statements to House Judiciary on Antitrust Reform

The House Antitrust Subcommittee has been undertaking an investigation into competition issues in digital markets for a little more than a year, with an eye toward legislative reform of the antitrust laws aimed at reining in perceived abuses by large U.S. technology companies like Amazon, Apple, Facebook, and Google.

The Subcommittee’s Democratic majority is expected to issue its report in the coming weeks. Although the investigation was initially billed as “bipartisan,” it is unclear whether there will be bipartisan support for the Subcommittee’s report and legislative recommendations which, although nominally aimed at digital markets, will likely affect all antitrust law, and thus the whole economy.

Indeed, some submissions to and testimony before the Subcommittee have proposed the nullification of a large amount of existing case law that is seen as constraining the federal antitrust agencies’ ability to challenge certain business conduct. The Subcommittee’s report is expected to propose changes that may shift antitrust law back to the 1960s approach when, in Justice Potter Stewart’s words, “[t]he sole consistency that I can find is that, in litigation under [the merger laws], the Government always wins.”

Several members of the Regulatory Transparency Project’s antitrust working group (along with a number of other prominent antitrust scholars with a range of views) were invited to submit statements earlier this year, as the Subcommittee approached the end of its investigation. The submissions from RTP members were varied, but all agreed that many of the assumptions made by those arguing for radical changes in the antitrust laws were mistaken; that the existing body of antitrust law, built up over decades in careful case-by-case decisions, continues to promote competition and create huge benefits for consumers; and that there is no evidence that antitrust enforcement is lax by historical standards. Where reform is needed, many argued, it should be in the form of common sense, incremental improvements that can improve antitrust at the margin by increasing the accountability of the federal agencies. One can view all of their statements here, or individually here:

  • Joint Statement by Antitrust Economists, Legal Scholars, and Practitioners
  • Statement by James Cooper, Joshua Wright, and John Yun (all of George Mason University)
  • Statement by Daniel Crane (University of Michigan)
  • Statement by Deborah Garza (Covington & Burling LLP)
  • Statement by Thomas Hazlett (Clemson University)
  • Statement by Thomas Lambert (University of Missouri)
  • Statement by Geoffrey Manne (International Center for Law & Economics)

Note: As always, please note all expressions of opinion are those of the individual members, and the Regulatory Transparency Project takes no positions on such matters. Not all statements in the linked folder are written by members of the RTP working group.

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the author(s). To join the debate, please email us at [email protected].

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