State Enforcement: Less Theory, more Delivering for Constituents

Antitrust practice is in an incredibly dynamic moment with significant debates centered on the direction jurisprudence and enforcement should proceed.  These debates pose important questions with significant policy, economic, and political outcomes.  However, such debates remain fairly abstract and are largely divorced from the antitrust enforcement work that state attorneys general (“State AGs”) perform.  State AGs, with the constraint of a direct electoral mechanism, have a greater accountability to voters and constituents than other forms of antitrust enforcement.  Because of this direct relationship with constituents, in combination with the limited resources of state budgets, State AGs have a greater imperative to pursue enforcement that delivers for constituents.  State AG antitrust enforcement necessarily follows constituent priorities and has less room for abstract, ideological pursuits.  State enforcement may therefore prioritize protecting the cultural economy of the state, remedying consumer harm through unfair trade practice laws, and protecting the state’s own pecuniary interests as an entity.

By Jeff Dan Herrera & Cholla Khoury^[1]

The debates, discourse, and disagreements within antitrust circles in recent years make this a fascinating time to practice in the field. New questions — largely spurred by giant tech firms, never-before-imagined technologies, and how antitrust enforcers should respond to them —