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Barnett, Thomas O. --- "Competition Law and Policy Modernization: Lessons from the U.S. Common-law Experience" [2010] ELECD 359; in Mateus, M. Abel; Moreira, Teresa (eds), "Competition Law and Economics" (Edward Elgar Publishing, 2010)

Book Title: Competition Law and Economics

Editor(s): Mateus, M. Abel; Moreira, Teresa

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848449992

Section: Chapter 11

Section Title: Competition Law and Policy Modernization: Lessons from the U.S. Common-law Experience

Author(s): Barnett, Thomas O.

Number of pages: 12

Extract:

11. Competition law and policy
modernization: lessons from the
U.S. common-law experience
Thomas O. Barnett

In this chapter I will discuss the modernization of competition law with a
particular focus on single-firm conduct issues.1
In 2002, the U.S. Congress created the Antitrust Modernization
Commission (AMC) and charged it with studying the state of antitrust law
in the United States.2 The 12-member, bipartisan commission spent three
years conducting public hearings and studying a wide range of antitrust
issues. In one of their principal recommendations, they concluded that the
core U.S. antitrust laws (that is, Sections 1 and 2 of the Sherman Act and
Section 7 of the Clayton Act) do not require any fundamental change in
their substantive provisions.3
You might reasonably ask how the AMC could have reached such a
conclusion. The substantive provisions in those statutes have been the
same since 1914. Since that time, there have been dramatic advances in
economic and legal analysis of competition issues and almost unimagi-
nable changes in the size and complexity of the economy generally. How
could substantial revisions not be warranted? The answer, I submit, is
two-fold. First, the U.S. antitrust laws set forth general principles that do
not seek to define in detail actions that violate the law. Rather, the courts
are charged with interpreting the relatively general statutes as applied
to specific facts in particular cases. Second, the courts have approached
their task of interpretation under a system ...