Antitrust Reform Efforts and Statutory Parens Patriae Authority

Borrowing from an earlier tradition first developed in American law by the courts, Congress has a long history of granting express enforcement authority to state attorneys general to bolster the enforcement mechanisms of intended reforms. This article catalogs existing grants to state attorneys general of express “parens patriae” authority, or functionally similar authority, in federal statutes, comments on discernible trends, and opines that the inclusion of “parens patriae” authority in several of the much-discussed “tech” competition bills introduced in the current Congress is highly appropriate given the tendency to reserve such grants for matters of trade regulation and, especially, for those unique to the digital age. 

By Matthew Michaloski^[1]

Ambrose Bierce quite cleverly defined “reform” as a “thing that mostly satisfies reformers opposed to reformation.”^[2] Like all cynics, he was always somewhat but never entirely correct in his observations, and, in this case, a superior definition is to be found in Dr. Johnson’s succinct and felicitous take that to reform is simply “[t]o change from worse to better.”^[3]

And that word is on the minds of many lately who think they see a lot of worse in antitrust law that they would like to change for better. Take, for instance, the much-discussed House report on digital markets, concluding that the 18-month investigation of dominant online platforms had “demonstrate[d] the pressing need