In Defense of State Enforcement: A Positive Perspective on State and Federal Cooperation

Antitrust enforcers do not always see eye to eye. The recent cases of Qualcomm and Sprint/T-Mobile provide two recent examples. Despite the rare fractures that separate enforcers, the two-tiered enforcement infrastructure has significant benefits that outweigh any inefficiencies. State and federal enforcers have been able to expel many of the inefficiencies in our overlapping enforcement regime through cooperation. Cooperation, however, does not happen merely by accident. The spillover effects between state and federal enforcement incentivizes cooperative antitrust federalism. Those spillover effects flow in both directions. On one hand, the concurrent jurisdiction held by States Attorneys General and both federal enforcers under federal law exhibits externalities in which an enforcement decision by one agency affects the decisions by other concurrent enforcers. At the same time, enforcement decisions under federal law have serious implications for States Attorneys General, who have their own state antitrust laws that are commonly constructed and construed consistent with federal law.

By Joseph Conrad¹

I. INTRODUCTION

Congress has constructed antitrust enforcement in the United States in a cake-like fashion: with three separate layers. Each layer contains its own set of independent enforcers, adding further complexity to the U.S. enforcement regime.

Federal enforcement sits atop the structure with enforcement duties divided between the U.S. Department of Justice